When it comes to lodging Australian expat tax returns, it’s important to understand whether you are an Australian resident for tax purposes or not.
Why is this important? Well, first and foremost, if you are taxed as an Australian resident, you will be required to pay tax on your worldwide income from all sources at high Australian tax rates.
Non-residents however, are only taxed on income earned and sourced specifically in Australia.
As an Australian expat, most of your income is likely to be from overseas. Thus, declaring yourself as a non-resident will ensure that you get the full benefit of the lower tax regime in your country of residence. Having said that, it’s always worth checking your circumstances with us first, because, recent budget announcements means that the benefits of non-residency are not so clear-cut nowadays!
If you are working overseas, paying tax as an Australian Resident often means you will pay tax on your overseas income without wreaking any of the benefits that come with it, such as access to lower overseas tax rates, and no practical access to Australia’s medicare system.
As the ATO carries out in-depth analyses and audits of Australian expats, (particularly audits relating to an expat’s residence status), it’s vital that you prove you really are a non-resident for Australian tax purposes when lodging your tax returns.
Am I an Australian resident for tax purposes or a non resident? Here’s ten things to consider . . .
1. Submit evidence of your permanent living situation
Long-term rental agreements, mortgages and issues of correspondence to the same address will all act as evidence of having a permanent residence overseas.
2. Electoral Registry
Remove or update your details on the Australian electoral roll to show that you are no longer considered an Australian permanent resident.
3. Take ATO residency tests
The primary test that the Australian Tax Office provides is the ‘Resides Test’. If you don’t satisfy the resides test, the ATO will expect you to take one of three other tests to prove your residency status:
- ‘The Domicile Test’,
- ‘The 183 Day Test’, and
- ‘The Commonwealth Superannuation Test’
You only need to pass one of these four tests to be considered as a resident of Australia. If you don’t satisfy any of these tests, then you may be considered a non-resident for Australian tax purposes.
4. Sell or lease out your Australian property
Selling or leasing out your property so that it is not available for your use, assists to provide evidence that you are not considering returning to Australia soon. Bear in mind that there may be Capital Gains Tax issues to consider in both cases, whether you choose to sell or lease out your property, so it’s wise to check in with us first.
5. Evidence of overseas finances
Open an overseas bank account and an overseas credit card (if applicable) and live day to day from those accounts instead of via your Australian bank accounts.
6. Buy a one-way ticket
A one-way ticket out of Australia shows to the Australian Taxation Office that you are not considering returning anytime soon.
7. Provide ATO with foreign address
This could be a long-term rental property or real estate.
8. Foreign drivers license
Obtain a driver’s license in your country of residency.
9. Acquire overseas investment assets
Whilst we cannot provide you with any specific investment advice, it may be a good idea to begin building up a portfolio of overseas investments, to support that you’ve largely cut ties with Australia.
10. Health insurance
Obtain health insurance in your country of residence and don’t make claims on Medicare.
Why is Australian tax residency so complex? I’m confused
Working out whether you are an Australian resident for tax purposes is a unfortunately, unnecessarily complex.
What makes determining your residency status so difficult is that whether you are an Australian resident for tax purposes is that residency is very much based around the facts and circumstances of your life, and as your facts and circumstances differ from every other expat, there’s no hard and fast rules to determine your residency status.
Having said that, Australia does require a person to pass at least one of Australia’s four residency tests (see point 3 below). However this leads to another problem that complicates residency unnecessarily – for two of the main tests of residency (‘Resides’ Test and the ‘Domicile’ Test), the phrases used in those tests are NOT defined anywhere in Australia’s tax acts. So to understand how to apply those tests, it means that you need to turn to the courts to understand historical and recent case-law relating to residency, and you also need to turn to various tax-rulings published by the Australian Taxation Office!
Combine those two issues, i.e. that residency is based on your facts and circumstances, that differ from every other expat on earth, and that half of Australia’s tax residency tests are unnecessarily subjective and vague, defined by principles developed in common-law court cases (that evolve over time), and it means that for most people, determining their own residency status is complex and potentially fraught with danger if you get things wrong!
Even for many tax accountants, determining whether a person is an Australian resident for tax purposes or a non-resident for Australian tax purposes, is difficult.
Determining a person’s residency status is akin to trying to hit a rapidly moving target on a spinning wheel, from a rapidly moving platform, that is spinning in the opposite direction. In short, it’s a frustrating, complex, and difficult task, at best!
Confused about whether you are an Australian Resident for tax purposes? Relax . . . our team are here to help
Speak to an Australian expat tax specialist today
If you’re an expat or potential expat, you’ll already know that residency is unfortunately quite a complex issue as far as Australian taxes go, and because of the disparity in how residents are taxed (on worldwide income) versus non-residents (only on Australian source income), getting it wrong can be very costly.
So, resolving the issue of your tax residency status is incredibly important.
As such, if you’re confused about Australia’s complex residency rules we highly recommend that you book a “Residency – Am I a resident of Australia for Australian taxation purposes” tax consultation with one of our tax specialists in order to get to the bottom of the issue and put your mind at ease.
Book your residency consultation today
Simply fill out our booking form (below) and choose the “Residency – Am I an Australian tax resident” consultation (our most popular appointment), with us and our team will have your tax residency issues sorted in no time.
[bookly-form category_id=”1″]
Please note: To simplify the booking process, the available appointment times (listed above) will be displayed in your timezone, not ours!
What will we discuss in our residency consultation?
When you book a residency consultation with us, the agenda is fluid and can be adjusted to suit your needs, but as a guide, the topics that you can expect us to discuss include the following:
We’ll discuss:
- your circumstances as an Australian expat or potential expat (if you’re considering a role overseas)
- whether or not you are likely to be deemed a resident or non-resident for Australian taxation purposes based on those circumstances,
- tax traps and the taxation consequence of your residency status relating to the income that you earn and the assets that you own,
- potential tax planning opportunities available to you based on our opinion of your residency status, and
- recent legislative changes relevant to non-residents (e.g. CGT changes for Australian property, HECS/HELP debt reporting obligations, Foreign resident CGT Withholding legislation etc),
- we’ll discuss and answer any questions that you both may have.
Plus
As you can see, there’s a lot of tax issues to consider, and sadly, these issues are complex and challenging. If you’re thinking of moving overseas, be sure to book a ‘Residency’ tax consultation with us today.
We’ll be able to step you through the issues so that you’ll be able to minimise your taxes, maximise your wealth, and take advantage of all the various tax opportunities that are available whilst minimising the risks!
Get in touch with our Expat Taxes team today!
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Comments 27
Hello,
I have a question regarding the process to become a non tax resident. I currently pass all test besides the domicile test but I am relocating to Spain at the end of this financial year which will mean I qualify for non tax residency. My question is how do I notify the ATO of my new domicile location and do I have to do it as soon as I leave the country or do I do it when I lodge my tax return and select non-resident? I remember 10 years ago I just selected a check box that declared I wasn’t a tax resident but not sure if that’s still the process or if I have to actually call up and submit an application. Thank you for any clarification.
Dane.
Author
Hi Dane,
Thanks for your questions. Firstly, I note that you believe that you won’t be a tax resident of Australia once you move to Spain, and whilst this could be true, it may not actually be the case – Australia’s residency tests are very nuanced and difficult to apply. Thus, when it comes to Australia’s tax residency rules, it really is worth seeking advice from a highly experienced expatriate tax firm. Just to be clear, I’m not saying that you must seek residency advice from us here at Expat Taxes, instead, I’m recommending that you seek such advice from any reputable, skilled and experience expatriate tax firm, whether that be us or another firm as it is important for you to get your residency status right. Getting it wrong can be costly, very costly indeed.
Btw, just as aside, in your message above, you actually mentioned that you pass 3 of the tests – passing any of Australia’s residency tests means that you’ll be a tax resident of Australia. If you want to be a non-resident, you’ll need to fail all four residency tests!
Regarding domicile, I’m not sure that you understand that concept insofar as it relates to Australian tax and residency. Assuming that you are an Australian citizen, unless you are also a Permanent Resident or citizen of Spain, AND you have the intention to make your home and life indefinitely in Spain (i.e. you are emigrating permanently to Spain, with no intention to return to Australia to reside), your domicile won’t be Spain, it will remain as Australia. Instead, what you’ll need to do is ensure that you have a ‘permanent place of abode’ in Spain in order to not be a resident under the domicile test. That’s a very difficult concept to apply however, as that phrase is not defined anywhere in Australian statutory tax law!
Be that as it may, let’s assume that you will become a non-resident for Australian taxation purposes when you land in Spain. If this is the case, all you need do to let the ATO know that you have become a non-resident is correctly answer the various residency questions on your tax return. These questions ask whether you are a resident, the date that you ceased residency in Australia and how many months of the tax-free threshold are you entitled to.
Whilst that’s the case for non-residency, also bear in mind that:
then within 7 days of leaving Australia, you will need to provide the ATO with an Overseas Travel Notification.
Thanks again for your question Dane – I hope my explanation helped. And don’t forget, doing an outbound expat tax consultation to assess and explain your residency status, and what that means for all your income and assets is really important, so please think seriously about booking and attending a meeting about that.
Thanks
Shane
Hi Shane,
Thanks for the informative and speedy response – it clarified a lot.
Correction on my end – I was meant to say I currently “fail” 3 of the 4 residency tests – with just the domicile test I still pass. I currently work overseas as a seafarer so all my income is from overseas sources. I have no loans or debts in Australia, no property and only currently spend a few months here a year – hence why I am looking to relocate to Spain. I have a permanent rental agreement already organised and signed in Spain but technically won’t be regarded as resident there as I will only be there a few months a year as my work takes me away for the majority of the year. If I always return to Spain, rather than Australia, between contracts and have a permanent abode there, but do not have residency in Spain, will that still likely qualify me as domiciled in Australia?
Thanks again,
Dane
Author
Hi Dane,
No worries at all, happy to help. Firstly, as a seafarer, you’re definitely on the right track because you do need to have a ‘permanent place of abode’ outside Australia where you genuinely live (when not at sea) and that you regularly return to. Please also know that you should ensure that your home in Spain is always available to you (even when you are at sea) and so this means that you will need to keep your home vacant – do not rent your home out on AirBnB (or similar) whilst at sea because if you do, in my opinion, it’s impossible for you to argue that you have a permanent place of abode outside Australia, and if not, well, you’ll be a resident of Australia after all!
Now, there’s something else that you may not have considered fully. Don’t assume that just because you’ll only be in Spain a few months of the year (i.e. below 183 days) that you won’t be a tax resident of Spain!
Why? Because there’s more to Spain’s residency rules than simply a 183 day test. Accordingly, again, I highly recommend that you seek some advice from a qualified Spanish accountant (unless you’ve done so already).
Btw, the rules are contained in Articles 8 & 9 of Spain’s income tax law (Ley 35/2006, de 28 de Noviembre, del Impuesto sobre la Renta de las Personas Físicas).
Article 8 states that a person shall be subject to Spanish income tax if their habitual residence is in Spain.
Article 9 states that you will have a habitual residence in Spain if the main nucleus or the base of your activities or economic interests, directly or indirectly, reside in Spain.
In your case, with your only home being in Spain, and with a job that takes you overseas regularly, there MAY BE an argument that Spain is the main base of your activities and that as such you may actually be a Spanish tax resident subject to Spanish income tax on your worldwide income, (including wealth tax and inheritance/gift taxes where applicable).
Just something to consider. It may be that you are correct in your understanding about being a non-resident for Spanish tax purposes, but if I were in your shoes, I’d want to check with a Spanish accounting just to be sure!
Regarding your question about domicile, regardless of the fact that you will always return to Spain between contracts, given that you are not a Permanent Resident, nor citizen of Spain, you domicile will remain as Australia. And that’s fine btw….the key thing is that if your domicile is Australia, then at all times, to be a non-resident you must have a permanent place of abode outside Australia. But for yachties and seafarers generally, that’s usually very, very difficult to achieve.
Thanks
Shane
Hi, do you think this situation would change the tax residency of husband in this scenario: Husband and wife overseas for 14 years. Wife moves back to Australia with children after start of current financial year. No property owned by either husband or wife in Australia (living with family). No medicare card. No Australian income. Husband will visit frequently but being careful not to go over 180 days. Husband only. has Australian passport while wife and children have UK also. Wife and children entered Australia on Australian passports and ticked ‘Australian returning home’ on landing cards. Could the tax commissioner argue that a ‘life’ is being maintained in Australia even though there is no domicile?
Hi Annabelle,
There is a strong likelihood that the husband will be an Australian tax resident based on the fact that his family is in Australia, he will have a home in Australia.
Unfortunately Australia has 4 different residency tests and if a taxpayer passes any of the 4 tests they will be a resident. The 180 day test is only one of the tests to be considered. Here is a link to a blog article about the residency tests.
Regards
Terryn
Hi, i’m an Australian resident under NZ passport. I’m intending to go overseas for work (Saudi) for two years with my wife and children staying behing in Australia. In this scenario would i still be treated as foreign tax resident given my family and house are still in Australia?
Thank you appreciate any advice.
Hi Than,
There are many Australian tax cases where taxpayers have been found to be Australian tax residents due to their family remaining in Australia. We’d need to find out more about your circumstances to give you a definite answer regarding your residency but with your family in Australia it’s quite possible you will remain an Australian tax resident.
Thanks for your question.
Regards,
Terryn
Hey i’ll try make this short
So i’m Australian Citizen, I’m looking at getting a Dual citizen ship in Portugal buying a house there and moving there AKA I plan to cut all ties with Australia so i become a non-taxable residence so what ever the requirements are i’ll do what’s needed to become a non-tax residence of Australia.
So my questions are, If i dropped every single tie here & Sold everything etc etc, And i was to set up my life fully in Portugal is there a certain amount of days i have to be out of Australia for to become a non-taxable residence? Even if i did everything possible i feel like i’d still have to wait 6 months or something for the status of a non-taxable residence
Do you actually get a Official status of proof for a “non-taxable residence in Australia” how does that work? Or can i just make money in Portugal and as long as i know i’m not in the requires and i am a non-taxable residence of Australia, I’m okay? I can go to court and prove i’m not or something? But this comes my next question. This sounds sketchy as i want everything to be legal and i hope i can officially apply for & be approved for a “non-taxable residence in Australia” so i know i’m safe..
My other question, So say when i officially can prove im a non-taxable residence in Australia, I can then Cashout out & make income in Portugal for that tax year BUT then after i have all my wealth in my hands/banks whatever in Portugal, What happens from there? Say i’ve paid my tax’s in Portugal or as there is no tax’s on some things, Just say i didn’t end up paying any tax’s because that’s how it works AKA pretty much i’ve got my wealth in my hands.. Can i then move back to Australia in the future, next year or something, Then can i become a Australian tax residence and transfer all my capital back to Australia without any stupid taxes just to send my money from my main residence (Portugal) back to Australia when i want to come live in Australia again and become a Tax residence and make it my main residence? Knowing Australia i swear they will want me to pay tax but i also hope not, Because that means technically i’d pay tax in Portugal or Whatever country, Then if i came back to Australia i would pay tax again just from transferring the money back to Australia, Surely not???
I know this is kind of a complex question but i hope you can help, thanks so much.
Hi
You will be a non-resident from the time that you no longer pass any of the 4 residency tests. It is possible to become a non-resident from the date you arrive in Portugal.
If the ATO audit your return, you would need to provide evidence to the ATO to demonstrate that you do not pass any of the residency tests. If the ATO doesn’t agree with your assessment you could take it to court and the court would decide on your residency.
There is no application that is made to be a resident, there are questions in the return about your residency and it is the basis that you prepare your return. The only way you could get certainty on your residency is by applying for a private ruling from the ATO.
You would also have to consider with the assets you have when you cease residency, this could result in a deemed capital gain.
If you have been non-resident and you go back to Australia and become a resident you won’t be taxed on income earnt whilst non-resident and if you have acquired non-taxable Australian property assets you will get a new cost base for those assets, which is the market value on the date you become a resident.
There is a lot to consider in your questions so bear in mind this is from a very general perspective and is not specific to your circumstances.
Regards,
Terryn
I’ve been a non-resident for tax reasons in Oz since 2010 when I sold up, cut ties and left. In 2016/17 I purchased land and built a house for my adult kids to live in as they didn’t want to stay in the UAE. When I visit them, I stay in the house on average 50 days pa. I also have a tenancy contract in the UAE where my work is based. Has my domicile/residency changed?
Author
Hi Ron,
Apologies for my very delayed reply to your question – our messaging system for our blog had some issues so we’ve only just come across your message now. I’m sorry about that.
Regarding whether your residency, ultimately, the answer depends upon the facts and circumstances of your life, your intentions and how you’ve structured things (particularly back home in Australia). Unfortunately, I just don’t have enough information to determine your residency status however just from the snippets of information that you’ve provided, I have some concerns.
Although your domicile is likely to have remained unchanged (i.e. your domicile remains as Australia most likely), you MAY have inadvertently become a tax resident of Australia, not under the domicile test of residency, but under the ‘Resides’ Test.
Having said that, it is possible that perhaps your residency status has remained unchanged, however as I mentioned above, your situation as you’ve described it raises some red flags.
In recent years there have been at least two residency cases involving Australian taxpayers with broadly similar circumstances to yourself. In those two cases, the taxpayers involved, predominantly lived and worked overseas (in some cases for years). In both cases, the taxpayer’s owned property in Australia that they used approximately once per year (for 6-8 weeks only). In both cases, the taxpayer’s were found to be tax resident’s under the ‘Resides’ Test for the entire year, notwithstanding that they also lived overseas, with the result that their worldwide income thus became taxable in Australia for the whole tax year!
Those two cases resulted in terrible outcomes, tax-wise, particularly given that with careful planning, the resultant, unnecessary, Australian tax could have been avoided totally.
Regarding your situation, I’d urge you to get in contact with us as soon as possible to discuss your situation so that we can alert you to the potential risks, and so that we can help craft a legitimate solution to minimise your taxes.
Thanks again for your question.
Regards
Shane
In 2010, I left Australia for Saudi (2010-14) and UAE (2014 to now) with my wife and daughter with the intention to leave Oz permanently. I sold up everything and only left a bank account open to transfer money to my 18yo son when necessary. Between 2010 and 2014, I bought and sold two different holiday properties in Spain and Scotland and only returned to Oz in 2016 to purchase a block of land and arrange a build. The purpose of the house was to have a home for my son and daughter while they studied and worked there. My wife and I would also use it for holiday visits.
In 2017, the house was built. I accompanied my wife and 17yo daughter to Oz for 6 weeks as they relocated there while I financially supported them from the UAE. My wife returned to the UAE permanently in 2019. Since we acquired the house, I have maintained the home paying bills through my Oz bank acc. and supported my daughter through uni with my UAE income. I have spent on average 55 days pa in 3 years there and have not been back since Jan 2020.
It’s 2021, I’m 60. COVID has hit all our plans for a permanent lifestyle in the Gulf with regular visits to Europe and Oz to see family. I now plan to return to Oz and become a resident again in the house I built in 2017. The question is: Has my domicile changed since I built a house in Australia in 2017? Or do I only become a resident when I get back to Oz?
I’ve been an Australian citizen, non-resident for tax purposes as I’ve been a resident in France for the past 10 years (where I’m an employee and pay taxes). I’ve just recently purchased an investment property in Sydney so I will need to declare the eventual rental income. However, I understand there is a tax treaty between France and Australia to avoid double taxation of income.
What do I need to do in Australia? How is my tax calculated?
Thank you
Hi Lina,
Thanks for your question.
Now that you have purchased an Australian rental property you will need to prepare an Australian tax return and include your rental income and deductions.
The treaty between Australia and France sets out how rental income is taxed. The rental income will be taxable in your Australian and French tax returns, you will need to pay tax first in Australian and then any tax you have paid in Australia will be able to be claimed as a foreign tax credit in your French tax return.
It is important to note that Australian and France have different tax years so the timing of lodging your Australian return first will be important to ensure you have paid the Australian tax first and then can claim the foreign tax offset in your French return.
On our website you can schedule a free ‘general enquiry’ call with one of our team if you’d like to find out more.
Regards,
Terryn
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If I’m living in the UK and have done for just over 2 years, and become a non-resident of Australia, how does this affect me with the following:
If I return to live and work in Australia in a few years, how do I re-instate my residency status and am I eligible straight away on my return, to access medicare, centre-link if needed, etc?
Do I need to tell my bank that I am no longer an Australian resident, and if I do, how does that affect me with any accounts (even if they have nothing in them?)
What happens to my HECS debt (currently I am not earning near the threshold)?
Hi Jennifer,
Your residency status is determined by your personal circumstances, when you return to Australia you should review the ATO residency tests. If you satisfy any of the test you will be an Australian Tax Resident. Your residency status will be advised to the ATO in your tax return.
As an Australian Citizen who is a non-resident expat, living and working overseas, although you can’t use Medicare forever, you CAN use Medicare and claim Medicare benefits for a period of up to 5 years from the date that you first left Australia.
Note, if your Medicare card has an expiry date of less than the 5 years, practically speaking you won’t be able to renew your Medicare card whilst living overseas and so in that instance, you will be limited in claiming Medicare benefits to the date of expiry of your card.
If you return within 5 years of your departure and your Medicare card is still valid you can claim using the same card. If this isn’t applicable you will need to apply for a new Medicare card on your return but you will be required to prove you are a resident by providing proof of your address.
You should have a read of Shane’s article Medicare for Australian Citizens overseas as this explains eligibility for Medicare in detail.
In regards to claiming Centrelink you should be eligible for most Centrelink benefits on your return, you will have to prove that you are living in Australia to be eligible for benefits.
You should advise your bank that you are a non-resident for tax purposes and update your residential address. This way they will withhold tax on interest they pay. As a non-resident you do not receive any tax free threshold, so even if you only earn $1 of interest from your Australian bank you are required to lodge a tax return and pay tax on that income.
For your HECS debt even though you are below the repayment threshold, there are additional requirements for non-residents.
There is both a reporting threshold, AND a repayment threshold.
The repayment threshold, is $45,881 for 2019/2020 and if your worldwide income exceeds that amount, then you’ll be obligated to make a compulsory HELP/HECS debt repayment.
The reporting threshold on the other hand is equal to 25% of the repayment threshold. That is the threshold above which you are required to calculate and report your worldwide income to the ATO. For 2019-2020 the reporting threshold totals only: $11,470.
This means that if your worldwide income exceeds $11,470 for the 2019-2020 Australian financial year, then you are required to calculate and report your worldwide income to the ATO via a foreign income reporting schedule in your 2020 tax return, even though your income may not exceed the repayment threshold. Here is a separate article about HELP/HECS debt obligations for Australian expats
If you need any assistance with any of your questions reach out to our team and we will be glad to assist you.
Regards,
Terryn
Shane is super helpful, patient and his explanations were clear and concise. Highly recommend seeking his assistance if you are an expat in need! I had a tax question as a result of my situation caused by the Covid 19 pandemic and on a subject that I would normally be completely lost on, he helped me to understand and resolve the issue swiftly and easily. I will recommend to my expat friends.
Author
Hi Elizabeth,
It was our pleasure to be able to assist. Thanks so much for your kind words also. All of us here at Expat Tax Services very much appreciate your comments.
Cheers
Shane
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Hi
I am a NZ citizen and tax resident and I earn income in Australia as an extension of my NZ business.
My Australian domiciled income does not include income from which non resident withholding tax is deducted but includes business consulting income and the occasional sale of bloodstock at Australian auction sales. The horses are imported into Australian and typically sold at auction within 1 to 2 weeks of importation. I include my Australian earned income as part of my NZ income tax return.
I do not have a permanent establishment or residency in Australia.
My question is Based on my situation am I required to file an Australian income tax return?
Hi George,
Thanks for your question. There are many factors to consider to answer your question properly. It is probably necessary to have a call to discuss further.
If you would like to discuss can you book a free ‘General Enquiry’ appointment with Shane through our website appointments page https://www.expattaxes.com.au/appointments/
Regards,
Terryn
Shane, I am currently working in Mongolia on a large construction project. Need advice about becoming a non resident for ATO purposes.
Author
Hi Gary,
Thanks for your message – I’ve sent you an email to discuss so check your inbox as it should land soon.
Regards
Shane
Do you advise on local residency / non-residency issues in Malaysia? I am an Australian relocating to Malaysia and have some questions about the local tax situation for expats in Malaysia. Are you able to assist with this?,
Author
Hi Peter,
Thanks for your message. We do provide residency advice in relation to Australian expats moving to Australia. In fact we look after a large number of clients who are based in Malaysia, and as we were based in Malaysia originally, we’re quite familiar with the various questions that we’d expect you to ask about.
If you are interested in booking a residency consultation, you can do so directly via the Book an Appointment page on our website.
Regardless, I’ll follow up by sending you a quick email just so that you have my contact details so that you can reach out to me to learn more if you wish.
Thanks
Shane