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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 tests, ATO rulings 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.

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Am I an Australian tax resident?

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, namely:

  • the ordinary concepts test;
  • the domicile test;
  • the 183-day test; and
  • the superannuation test.

Each test considers different factors, which means your residency status depends on your overall circumstances, not simply where you live or how many days you spend in Australia.

You may need tax residency advice if you have moved overseas, returned to Australia, live between Australia and another country, maintain family or assets in Australia or have received questions from the ATO about your residency status.

Our experienced tax residency lawyers can assess your circumstances and advise whether you are likely to be treated as an Australian tax resident or foreign resident for Australian tax purposes.

Australian Tax Residency Questionnaire

Unsure whether you are an Australian tax resident?

This Australian tax residency questionnaire will help us understand your circumstances, including your travel history, living arrangements, family ties, employment, assets and connection to Australia and any overseas country.

It is not legal advice, but it is a useful first step in assessing your residency position. Tax residency is highly fact specific, and the ATO will usually look at your overall circumstances rather than any single factor in isolation.

Once you complete the questionnaire, our tax residency lawyers can review your responses and provide advice tailored to your situation.

Individual Tax Residency Questionnaire

What is the ordinary concepts test?

The ordinary concepts test considers whether, as a matter of ordinary meaning, you reside in Australia.

This test looks at the overall pattern of your life, including where you live, where your family is based, where you work, where your assets are located, how frequently you travel to and from Australia, and whether Australia remains the place where you habitually live.

You may be treated as residing in Australia even if you spend time overseas, particularly if your personal and economic connections to Australia remain strong.

What is the domicile test?

The domicile test may treat you as an Australian tax resident if your domicile is in Australia, unless the Commissioner is satisfied that your permanent place of abode is outside Australia.

This test is particularly relevant for Australians who move overseas but maintain strong ties to Australia. The question is not simply whether you are physically outside Australia, but whether you have genuinely established your home overseas in a sufficiently permanent way.

Relevant factors may include the length and purpose of your overseas stay, whether you have a settled home overseas, whether your family moved with you, whether you retained a home in Australia, and whether your conduct supports an intention to live overseas indefinitely or only temporarily.

What is the 183-day test?

The 183-day test may apply if you are physically present in Australia for 183 days or more during an income year.

However, spending 183 days or more in Australia does not automatically resolve the issue in every case. The test also considers whether your usual place of abode is outside Australia and whether you intend to take up residence in Australia.

The 183-day test is often relevant for people who spend extended periods in Australia while maintaining homes, employment, family or business interests overseas.

What is the superannuation test?

The Commonwealth superannuation test applies to certain Australian Government employees working overseas and their spouses and children.

If this test applies, a person may be treated as an Australian tax resident even while living and working outside Australia.

Does moving overseas mean I stop being an Australian tax resident?

Moving overseas does not automatically mean you stop being an Australian tax resident.

The ATO will usually consider whether you have established a settled home overseas, whether your family moved with you, whether you retained a home in Australia, the purpose and duration of your overseas stay, and whether your conduct supports an intention to live overseas permanently or only temporarily.

A person who moves overseas for an indefinite period, establishes a long-term home overseas and substantially reduces their Australian ties may have a stronger argument that they ceased Australian tax residency.

By contrast, a person who moves overseas for a fixed-term role, keeps their home and family in Australia, and intends to return may remain an Australian tax resident.

Does spending more than 183 days overseas make me a foreign resident?

Not necessarily.

The 183-day test focuses on whether you are physically present in Australia for 183 days or more during an income year. Spending more than 183 days outside Australia does not automatically make you a foreign resident.

Your residency position may still depend on other tests, including whether you reside in Australia according to ordinary concepts or whether your domicile remains in Australia and you have not established a permanent place of abode overseas.

This is why day counting alone can be misleading. Your travel history is important, but it is only one part of the broader residency analysis.

Can I be a tax resident of Australia and another country?

Yes, it is possible for Australia and another country to both treat you as a tax resident under their domestic laws.

This can occur where you have strong personal, financial or employment connections to both countries, or where each country applies different residency rules.

Where this occurs, it may be necessary to consider whether a double tax agreement applies. These agreements often contain tie-breaker rules that look at factors such as your permanent home, personal and economic relations, habitual abode and nationality.

Dual residency can create complex tax consequences, particularly where you earn income overseas, hold assets in multiple countries or move between jurisdictions during an income year.

Do I pay Australian tax if I live overseas?

It depends on whether you remain an Australian tax resident and whether you earn Australian-sourced income.

If you remain an Australian tax resident, you are generally taxed in Australia on your worldwide income, even if you live overseas.

If you become a foreign resident for Australian tax purposes, you are generally taxed in Australia only on Australian-sourced income. This may include Australian employment income, business income, rental income from Australian property and certain capital gains relating to Australian assets.

Your tax residency status can therefore materially affect what income must be declared in Australia.

What happens to my assets when I cease Australian tax residency?

Ceasing Australian tax residency can trigger capital gains tax consequences.

In some cases, you may be deemed to have disposed of certain assets at the time you cease being an Australian tax resident. This can create a capital gain or capital loss even if you have not actually sold the asset.

This is particularly relevant if you hold shares, units, cryptocurrency, business assets or other investments when you cease residency.

Before ceasing Australian tax residency, it is important to obtain advice about whether capital gains tax may apply, whether any choices are available, and how your assets should be dealt with from an Australian tax perspective.

What evidence does the ATO consider in tax residency matters?

Tax residency disputes are often evidence-driven. In a tax residency review, the ATO may consider evidence such as:

  • passport and travel movement records;
  • visa status and rights to remain overseas;
  • lease agreements or property ownership documents;
  • employment contracts and business records;
  • bank accounts, investments and superannuation;
  • location of spouse, children and close family;
  • health insurance, driver licence and memberships;
  • whether you maintained or abandoned a home in Australia;
  • overseas tax returns and foreign residency documents;
  • school enrolment records for children;
  • utility bills and household expenses;
  • correspondence with employers, accountants, banks or government agencies; and
  • documents showing your intention to live overseas or return to Australia.

The strength of your position often depends on whether your documents support the story you are telling.

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.

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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.

Avoid Unexpected Tax

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

Reduce 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.

Strengthen Your Evidence

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.

Plan Your Move Properly

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.

How our tax residency advice process works

We make the tax residency advice process clear and practical. Here’s what to expect:

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.

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Why choose us for your tax residency matter?

We provide clear advice on the Australian tax residency tests and how the ATO applies them in practice, giving you a practical strategy tailored to your circumstances.

Expert Advice

We provide clear advice on the Australian tax residency tests and how the ATO applies them in practice, giving you a practical strategy tailored to your circumstances.

Evidence-Based Strategy

Tax residency matters are highly fact specific. We help identify the documents, facts and risks that matter most to your position.

Personalised Service

You will work directly with an experienced tax residency lawyer who takes time to understand your situation, explain your options and guide you through each step.

Cross-Border Perspective

We can work with your accountant or tax adviser to manage broader issues, including dual residency, double tax agreement issues, CGT consequences and overseas income.

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.
Julie
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.
Patrick
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.
Elena
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.
Michael
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.
Priya
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.
Samir

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