The proposal in 2017-18 Federal Budget for stopping foreign residents from claiming CGT main residence exemption has passed by the Parliament before Christmas 2019 and takes effect retrospectively from 9 May 2017. Unless special circumstances applied, all foreign residents are not able to claim a full or partial exemption from CGT for the sale of their main residence. All foreign (non-tax) residents, including Australian expatriate, will be affected by the new rule.

Before that, all taxpayers (residents, foreign residents, temporary tax resident) are entitled to a CGT exemption when they sell their property as main residence.

Under new rule

The new rule, which comes into effect from 9 May 2017, excludes foreign resident from the CGT main residence exemption. The exemption will not be granted because you are an Australian tax resident for a period of time or will not be partially granted on a pro rata basis according to the time of your tax residency. The result of exemption will be determined on your tax residency at the time when you dispose your dwelling.

As mentioned, if you are an Australian tax resident when you sell your home, you will satisfy with the main residence exemption requirements even if you become a foreign resident while owing your main residence. For example, if you are an Australian expatriate working overseas and own a home in Australia. It is highly likely that you are still entitled to the exemption as long as you returned back to Australian and re-established your residency prior to selling your main residence.

Australian tax residents will not be affected by the new rule.

With some changes from the rule proposed in the 2017-18 Federal Budget including an extension of the transitional provision period, there are some other new exceptions.

Transitional rules applied before 30 June 2020

Transitional rules apply to foreign residents who satisfy the CGT exemption under the current rule. Foreign residents whose dwelling was held as at 9 May 2017 and disposed on or before 30 June 2020 are entitled to the exemption.  Therefore, if you own your home in Australia and live overseas, this would be your last chance to sell the property to be exempt from CGT tax.

Exceptions under the new rules

The same as other rules, the new rule has some exceptions. For example, if you are still qualified to access to the CGT exemption under the current rule and become foreign resident less than 6 years, exceptions will apply to you when the following “life events” occurred:

“Life events” refers to

• The death of the individual’s spouse or the individual’s minor children
• Diagnosis of a terminal medical condition of the individual, spouse or their minor children
• Distribution of assets between the couple as a result of divorce, separation or similar maintenance agreements

When the above events occurred, you are still entitled to claim the CGT main residence exemption even if you are a foreign resident. 

However, you will lose CGT main residence exemption if you are a foreign resident for more than 6 years. That is, both you and your beneficiary are not entitled to CGT main residence exemption once the transitional period is over unless otherwise you become a tax resident at the time before you sell your dwelling.

Definition of Australian tax residency

Australian tax residency is hard to determine since it doesn’t have any quantitative criteria. Most people think they are tax resident as long as they’ve been living in Australia for more than 183 days which is wrong. In Australia, four residency tests have been placed to determine tax residency, namely resides test, domicile test, 183-day test and superannuation test. Each test is supported by many past cases and analysis always requires combining four tests and other multiple considerations together, which could be quite complex.

If you have any queries regarding this matter, please feel free to get in touch with Pitt Martin.