Expats and foreign residents beware

CGT and the family home

guinea fowl family WAGstockThe family home of foreign residents and expats may be taxed if legislation before Parliament is passed by the Senate. 

If you are a foreign resident living in Australia or an Australian working overseas who owns residential property in Australia, this reform potentially has serious tax implications for you.

Currently, individuals are generally not subject to capital gains tax (CGT) on the sale of the home they treat as their main residence. If the home was your main residence for only part of the ownership period or if the home is used to produce income (for example, you use part of the home as business premises or rent out part of the property), then a partial exemption may be available. In addition, if you move out of your home and you don't claim any other residence as your main residence, then you can continue to treat the home as your main residence for up to six years if you rent it out or indefinitely if you don't rent it out (the 'absence rule'). 

The main residence exemption is currently available to individuals who are residents, non-residents, and temporary residents for tax purposes.

Under new laws before Parliament, you will not be able to claim an exemption under the main residence rules if you are a non-resident for tax purposes at the time you sell, even if you were a resident for some (or even most) of the ownership period. The new rules do not allow for partial exemptions. If, however, you are an Australian resident at the time you sell, then the normal main residence exemption rules apply, even if you were a non-resident for some or most of the ownership period.

Someone holding property at 9 May 2017 can apply the current rules if the CGT event occurs on or before 30 June 2019 - for a sale of a property the CGT event date is likely to be the date of contract not the settlement date. This transitional period gives non-residents some time to sell their main residence (or former main residence) if they choose and obtain a level of tax relief under the main residence rules.

Keep in mind that we are talking about tax residency, which has its own set of rules to the immigration, visas and citizenship requirements. It's different and you need you need to be clear about where you fit.

  • Australians working overseas
  • Foreign residents living in Australia

If you are uncertain of your position or the likely impact of these new rules on you, you should seek advice. Tax residency status is often complex and is not intuitive – it's important to get it right.

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