Tax Residency Lawyers

Your tax residency status determines how you are taxed in Australia and overseas. Whether you’re moving abroad, returning to Australia or maintaining dual ties, getting it wrong can lead to double taxation, unexpected assessments or ATO scrutiny.

Our experienced tax residency lawyers advise on residency and non-residency tests, ATO rulings, overseas income reporting and strategic residency planning. We explain complex rules in plain language and help you minimise risk, protect your assets and achieve certainty in your tax position.

What is a resident of Australia?

Your tax residency status determines how the Australian Taxation Office (ATO) taxes you.

Australian residents pay tax on their worldwide income, while non-residents are taxed only on income sourced in Australia.

Residency also affects your tax rates, whether you can access the tax-free threshold and how capital gains tax (CGT) applies.

Under section 6(1) of the Income Tax Assessment Act 1936 (Cth), a person will be an Australian tax resident if they satisfy any one of four residency tests. These are the ordinary concepts test, the domicile test, the 183-day test or the superannuation test. This means that even if you don’t live in Australia full-time, you may still be considered a resident for tax purposes.

Understanding how these rules apply to your circumstances is crucial.

Our tax residency lawyers analyse your position under each test, explain the risks and help you structure your affairs in a way that maximises tax efficiency and reduces exposure.

What is the ordinary concepts test?

The ordinary concepts test is the primary test used to determine residency.

Courts have defined “reside” as dwelling permanently or for a considerable time in a particular place. The ATO looks at your overall circumstances, including:

Intention and purpose – Are you overseas for a temporary assignment, travel, or education, or do you intend to settle permanently?
Family ties – Is your spouse or family with you abroad, or do they remain in Australia?
Employment or business – Do you earn income or operate a business overseas, or do you remain employed by an Australian organisation?
Assets – Where do you own property, bank accounts, or investments?
Social and living arrangements – Are you integrated into a foreign community, or do your connections remain primarily in Australia?

No single factor is decisive – the ATO considers the overall picture to decide whether you are still an Australian resident.

Our tax residency lawyers can review your situation and provide a clear view of how the ATO is likely to interpret your circumstances.

What is the domicile test?

The domicile test is particularly important for Australians moving overseas. If your legal domicile is in Australia, you will generally remain a resident unless you establish a permanent place of abode outside the country.

A domicile of origin is usually acquired at birth and continues unless replaced with a domicile of choice in another country.

To establish a domicile of choice, you must show both residence in that country and an intention to remain there indefinitely. Temporary visas, short-term work contracts, or a lack of permanent accommodation overseas may not be enough to displace your Australian domicile.

If you fail to prove a permanent place of abode abroad, you could still be taxed as a resident in Australia even after leaving.

Our tax residency lawyers advise on how to establish a domicile of choice and prepare supporting evidence to minimise the risk of an ATO challenge.

What is the 183-day test?

The 183-day test applies if you spend more than half of the financial year (183 days) in Australia. In most cases, this will make you a tax resident, even if you consider your main home to be elsewhere.

However, you may avoid being treated as a resident if you can show that your usual place of abode is outside Australia and you have no intention of taking up residency here. This test often applies to individuals who come to Australia temporarily for work, study or family reasons.

It is important to note that the 183-day test is generally relevant to incoming taxpayers rather than Australians departing the country.

Our lawyers can help you prepare evidence to demonstrate your usual place of abode, ensuring you are not incorrectly classified as a resident.

What is the superannuation test?

The superannuation test is narrow but still relevant.

If you are a member of certain Commonwealth Government superannuation schemes (or the spouse or child of a member), you will automatically be considered an Australian resident, regardless of where you live.

This test applies primarily to federal government employees posted overseas. While less common than the other tests, it demonstrates the breadth of residency rules and the need for careful analysis of your specific circumstances.

Our tax residency lawyers can confirm whether this test applies to you and how it interacts with the other residency rules.

What happens if you cease residency?

If you stop being a tax resident, you are generally deemed to have disposed of your non-Australian assets for capital gains tax purposes (CGT event I1). This can create a significant tax bill the moment you depart.

You may choose to defer this by keeping your assets in the Australian tax system until they are actually sold, but this choice comes with long-term tax consequences and risks.

In addition, ceasing residency may affect your access to the tax-free threshold, Medicare levy and other concessions.

Our tax residency lawyers guide you through the exit process, ensuring you understand the implications, make the right elections and avoid unexpected tax liabilities.

Do tax treaties apply?

Yes – Australia has double tax agreements (DTAs) with many countries to prevent the same income from being taxed twice.

If both Australia and another country claim you as a tax resident, the relevant treaty applies “tie-breaker rules” to determine which country has the primary taxing rights.

These rules often look at factors like your permanent home, centre of vital interests, and habitual abode. Correct application of DTAs can significantly reduce your tax burden, but errors are common and costly.

Our tax residency lawyers ensure the right treaty provisions are applied to your circumstances so you avoid double taxation and benefit from any available concessions.

Does the ATO review residency often?

Yes – the ATO actively reviews and challenges residency status, particularly for expatriates, high-net-worth individuals and frequent travellers.

Residency is one of the most common areas of ATO dispute because of the large amounts of tax at stake.

Reviews typically involve detailed requests for information, including travel records, family circumstances, asset holdings and overseas connections.

If you are audited, failing to provide consistent and well-supported evidence can result in back-tax, interest and penalties.

Our tax residency lawyers assist in preparing residency evidence, responding to ATO queries, and defending your position in audits and disputes.

Clarifying Residency, Protecting Assets

Your tax residency status determines how you are taxed in Australia and overseas. We provide clear advice, defend your position and protect your financial future.

Further Tax Solutions

Why seek advice on your tax residency?

Getting advice from a tax residency lawyer gives you clarity on your obligations and strategies to minimise tax, avoid disputes, and secure your future.

Tax Optimisation

Residency advice ensures you understand your obligations and provides strategies to optimise your tax position, minimise liabilities, and maximise available concessions.

Avoid Double Taxation

Clear advice helps you avoid double taxation and ensures you benefit from tax treaties, so the same income is not taxed twice across different jurisdictions.

Residency Support

If the ATO reviews or audits your residency, we help prepare evidence, respond to queries, and represent you to secure the best outcome without unnecessary penalties.

Tax Residency Assurance

Knowing your residency status gives you peace of mind that you are compliant, financially secure, and able to focus on work, family or business without uncertainty.

We’re here to clarify your residency status

Your residency status affects every aspect of your tax obligations. We provide practical advice, tailored strategies and strong representation to ensure you are compliant and protected.

Why choose us for your tax residency matter?

Choosing the right lawyer can make all the difference to the outcome of your residency advice.

Expert Advice

We provide deep knowledge of the tax residency tests and how the ATO applies them in practice, giving you clear and reliable strategies tailored to your situation.

Proven Results

We have extensive experience resolving complex residency disputes and securing favourable outcomes, ensuring you avoid unnecessary tax, penalties, and double taxation risks.

Personalised Service

You will work directly with an experienced tax residency lawyer who listens carefully, explains your options in plain English, and guides you through every step.

Strategic Solutions

We offer forward-looking strategies that minimise risk, optimise your tax position, and protect your income and assets across multiple jurisdictions.

Client Testimonials

Thank you to Boris and the team at Axe Legal for their assistance in helping me understand my tax residency status. Their thorough review of all the residency tests was greatly appreciated and made the process of determining my residency status very streamlined. If it wasn’t for their help in navigating the complexities of the ATO, I would have paid tax on my overseas income when I didn’t need to. I would definitely recommend Axe Legal to anyone that is unsure of their residency status as well as those who have received letters from the ATO.

Stefan and Boris at Axe Legal were absolute lifesavers! I really appreciate how they took the time to explain my Australian tax residency status to me in detail. Not only did they clarify my tax residency status for me, but they also pointed out other tax implications that I had not even thought about or knew existed. They really know their stuff and were so helpful in getting me up to speed on everything. If you need help with your tax residency from knowledgeable professionals, I cannot recommend Axe Legal enough.

I reached out to Axe Legal before moving overseas to confirm how my Australian residency status would be affected. Boris explained each of the residency tests in simple terms and gave me a strategy that avoided double taxation. His advice gave me peace of mind knowing my structure was compliant before I left.

After years of working between Singapore and Australia, I received a notice from the ATO suggesting I was still a resident for tax purposes. Stefan prepared a detailed submission and convinced the ATO to withdraw its assessment. I couldn’t have asked for a more professional or reassuring experience.

My accountant recommended Axe Legal to clarify how the Australia/UK tax treaty applied to my situation. Boris confirmed my primary taxing residency and prepared documentation that prevented double taxation. The level of care and expertise exceeded my expectations.

When the ATO questioned my residency status after years of living abroad, Stefan handled everything from preparing a residency statement to negotiating with the ATO. The review was finalised with no penalties and I finally have clarity on my position. I’m very grateful for the team’s precision and professionalism.