Are you an Ordinary Resident?

Are You Ordinarily Resident in Australia for NSW Surcharge Purchaser Duty?

Being an Australian permanent resident does not automatically mean that you are considered ordinarily resident in Australia for NSW surcharge purchaser duty purposes.

If you are purchasing residential-related property in New South Wales, your citizenship, visa status and the amount of time you have spent in Australia can affect whether you are treated as a foreign person.

What Does “Ordinarily Resident” Mean?

For NSW surcharge purchaser duty purposes, an individual will generally be considered ordinarily resident in Australia where:

• their continued presence in Australia is not subject to a limitation as to time, such as an Australian permanent resident; and
• they have actually been in Australia for at least 200 days during the 12 months before the relevant liability date, which is generally the contract date.

The 200 days do not have to be consecutive. The days of arrival in and departure from Australia are included when counting the period.

Australian Citizens

An Australian citizen is not treated as a foreign person for NSW surcharge purchaser duty merely because they have spent substantial time outside Australia.

This includes a person who holds Australian citizenship together with another citizenship.

Australian Permanent Residents

An Australian permanent resident can still be treated as a foreign person for surcharge purchaser duty if they do not satisfy the ordinary residence requirements and no exemption applies.

This is particularly important for permanent residents who have recently arrived in Australia or who have been living overseas before purchasing NSW residential property.

The 200-Day Rule

The ordinary residence test generally looks at whether the purchaser has actually been in Australia for at least 200 days during the 12 months immediately before the liability date.

For an ordinary contract for the purchase of property, the relevant liability date is generally the date of the contract.

Travel records may therefore become important when determining whether the 200-day requirement has been satisfied.

Exemption for Certain Permanent Residents

A permanent resident who has not satisfied the 200-day requirement before purchasing the property may still qualify for an exemption from surcharge purchaser duty in certain circumstances.

To qualify as an exempt permanent resident, the purchaser must generally:

• purchase the property as an individual and not as trustee of a trust;
• have permanent resident status at the relevant liability date;
• use and occupy the property as their principal place of residence; and
• reside in the property continuously for at least 200 days within the 12 months following the contract date.

The exemption is conditional upon the residence requirements being satisfied.

Other Visa Holders

Special rules can apply to some visa holders, including holders of certain partner provisional visas, New Zealand citizens holding a Special Category visa and certain retirement visa holders.

Temporary visa and bridging visa holders are generally treated as foreign persons unless they fall within a specific exception.

Foreign-person status should therefore be determined according to the purchaser’s particular citizenship, visa and residence circumstances.

How Much is Surcharge Purchaser Duty?

For relevant transactions entered into on or after 1 January 2025, NSW surcharge purchaser duty is currently 9% of the dutiable value of the residential-related property.

This surcharge is payable in addition to ordinary NSW transfer duty where the purchaser is a foreign person and no exemption or concession applies.

Evidence of Residence

Revenue NSW may require evidence supporting a purchaser’s citizenship, visa and residence status.

Depending upon the circumstances, relevant documents can include passports, citizenship or visa documentation, international movement records and the applicable Purchaser/Transferee Declaration.

The evidence required will depend upon the basis on which the purchaser claims not to be a foreign person or claims an exemption.

Purchaser/Transferee Declaration

Purchasers of NSW property are generally required to complete the appropriate Purchaser/Transferee Declaration.

The declaration assists Revenue NSW in determining matters including the purchaser’s identity and foreign-person status.

Learn more about the NSW Purchaser/Transferee Declaration.

Foreign Purchaser Duty and Land Tax

Foreign-person status can have consequences beyond the initial property purchase. Separate surcharge land tax rules may also apply to foreign persons who own residential land in NSW.

The residence tests and exemptions should be considered separately because the rules applying to surcharge purchaser duty and surcharge land tax are not identical in every circumstance.

Learn more about Foreign Persons Duty and Land Tax Surcharge.

Get Advice Before Signing the Contract

If there is uncertainty about your foreign-person or ordinary residence status, the issue should be considered before entering into the contract to purchase NSW residential property.

Russell Kelly & Associates can assist with the conveyancing and property law implications of surcharge purchaser duty and purchaser residency requirements.

Learn more about our Property Law and Conveyancing services.

Contact Our Office

This information is general in nature. Foreign-person status, ordinary residence and entitlement to an exemption depend upon the purchaser’s individual circumstances and the legislation applying to the transaction.