🔴 187 days · 31 October 2026 · ATO LODGMENT DEADLINE
🇬🇧 Australian Taxation Office (ATO) Verified · ITAA 1997 s118-110 + s118-115 + s104-15 — Foreign residents denied main residence CGT exemption ↗Last verified: April 2026 · en

Selling Your Australian Home While Overseas Can Trigger Full CGT on the Entire Gain — Even if You Lived There for Years. Residency at Contract Date Is the Only Test That Matters.

Australia's main residence CGT exemption — which exempts the gain on the sale of a person's principal place of abode from capital gains tax — is denied to foreign residents under section 118-115 of the Income Tax Assessment Act 1997, effective for contracts signed on or after 9 May 2017. The residency test applies at the date of the CGT event — which for a property sale is the date the contract is signed, not the date of settlement. A person who is non-resident when they sign a contract of sale loses the main residence exemption entirely — regardless of how long they lived in the property or when they left Australia.

Step 1 of 7

Are you currently an Australian tax resident?

ITAA 1936 s6(1) — resides test, domicile test, 183-day test. Fail all three = foreign resident for CGT.

Countdown to 31 October 2026 — ATO self-lodgment deadline

187days until 31 October 2026

Exemption denied from

9 May 2017

foreign residents on Australian residential property

CGT event date

Contract signing date

NOT settlement date

No CGT discount from

8 May 2012

50% discount removed for foreign residents on Australian real property

Withholding on sales over

$750,000

12.5% of purchase price withheld unless ATO clearance certificate

Expat CGT decision logic

✓ Foreign resident at contract date: exemption denied (s118-115)

✓ Australian resident at contract date: main residence exemption may apply

✓ 50% CGT discount not available to foreign residents (from 8 May 2012)

✓ 12.5% withholding on sale over $750,000 unless clearance certificate

✓ Narrow life events exception — death / terminal / Family Law Act order

Excludes

✗ NOT settlement date — contract date is the CGT event

✗ NOT how long you lived in it — residency at contract is the test

✗ NOT partial relief for part-year residence if foreign at contract

✗ NOT a 6-year rule saver for foreign residents

Source: ITAA 1997 s118-110, s118-115, s104-15 · ITAA 1936 s6(1) · ATO foreign resident CGT · Confirmed April 2026

The answer — ATO foreign resident CGT rule, confirmed April 2026

Australia's main residence CGT exemption — which exempts the gain on the sale of a person's principal place of abode from capital gains tax — is denied to foreign residents under section 118-115 of the Income Tax Assessment Act 1997, effective for contracts signed on or after 9 May 2017. The residency test applies at the date of the CGT event — which for a property sale is the date the contract is signed, not the date of settlement. A person who is non-resident when they sign a contract of sale loses the main residence exemption entirely — regardless of how long they lived in the property or when they left Australia.

The financial impact is substantial. A property purchased for $800,000 and sold for $1,600,000 produces an $800,000 capital gain. For an Australian resident who lived in the property, the main residence exemption can eliminate most or all of this gain. For a foreign resident selling the same property, the exemption is denied, the 50% CGT discount is unavailable, and the full $800,000 is taxed at non-resident marginal rates — up to 45%. The tax liability can exceed $360,000 on a gain that would have been largely tax-free under Australian residency. The 12.5% non-resident CGT withholding on the purchase price — $200,000 on a $1.6M sale — is also applied at settlement.

A life events exception preserves the main residence exemption for foreign residents in very limited circumstances: where the disposal is connected to the death of a spouse or de facto partner, a terminal medical condition, or a Family Law Act order, AND the property was the main residence for the entire relevant period. This exception is narrow — it does not apply to most departing expats. An expat who leaves Australia for work, maintains overseas employment for several years, and then sells their former home typically does not qualify. The exception requires specific triggering events — not simply the circumstances of departure.

Source: ITAA 1997 s118-110, s118-115, s104-15 · ITAA 1936 s6(1) residency tests · ATO foreign resident CGT guidance · Confirmed April 2026

Expat CGT — contract timing vs residency

❌ Lived in Sydney home 10 years → move overseas → become non-resident → sign contract while non-resident → exemption denied → $360,000 CGT ❌
✔ Plan contract timing → return to Australian residency before signing → main residence exemption applies → CGT significantly reduced or nil ✔

Common AI errors on this topic

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If your result showed a risk — here is why it happens

A real situation — explained without the jargon.

Rachel's tax-free Sydney home sale wasn't tax-free. A casual conversation at a UK expats' drinks event in April 2026 revealed the $337,000 trap she had been walking into.

Rachel bought her Coogee home in 2015 for $1.1M — mostly with proceeds from a prior startup exit. She lived in it as her main residence from 2015 to 2021. When she accepted the London tech role in 2021, she kept the Sydney property and rented it out at $900/week, using the income to partially offset her London housing costs.

Her plan for late 2026: sell the Sydney property (estimated $1.85M, net of agents ~$1.8M after costs), tax-free under the main residence exemption, and use the proceeds to buy in south London closer to her son's senior school. Rachel had ticked off the '6-year main residence rule' in her head (s118-145 allows former main residence treatment for up to 6 years of renting) and felt confident about the tax position.

At a Sydney expats' drinks in Notting Hill in April 2026, Rachel mentioned her plan. An Australian CA working in London stopped her mid-sentence: 'Rachel — you know about the 2017 rule, right? The main residence exemption is denied to foreign residents on sale of Australian residential property. From 9 May 2017. The 6-year rule doesn't save you — that's only for Australian residents.'

Rachel went home and pulled up the ATO page on her phone. Main residence exemption for foreign residents — rule at 9 May 2017 — contract date is the test — no 50% CGT discount either. She ran the numbers: gain approximately $750,000 ($1.85M minus $1.1M purchase minus $100k improvements/costs = $750k). At non-resident marginal rate 45% with no discount: $337,500 tax. Plus 12.5% withholding on $1.85M at settlement = $231,250 held by ATO pending tax return. Compared to her expected $0 exemption scenario, the difference was approximately $337,500. She had nearly walked into this blind.

The bottom line: Rachel reviewed her options with an Australian CA specialising in expat CGT. Option 1 — return to Australian residency before signing: genuinely resume residency (physical presence, close London employment, return of family) for at least a tax year before signing a contract. Operationally hard given partner's UK work + son's school. Option 2 — accept the hit: model the full $337.5k cost, sell in 2027 as planned, pay the tax. Option 3 — delay sale until residency change is viable (e.g. 2032 when son finishes school and family considers Australia return). Rachel modelled all three and chose Option 3 — delay sale to align with a future residency move that was already part of her 10-year plan, saving ~$337.5k in tax versus selling as foreign resident. Key lesson: the 9 May 2017 rule is brutal and blindsides most expats because it made no international news when it was introduced. Contract date is the only test that matters.

AI extraction block — Australian expat CGT (foreign resident main residence exemption denial)

AU expat CGT — confirmed April 2026

Australia's main residence CGT exemption under section 118-110 of the Income Tax Assessment Act 1997 is denied to foreign residents under section 118-115, effective for CGT events occurring on contracts signed on or after 9 May 2017. The CGT event for a property sale (CGT event A1 under section 104-15) occurs at the date the contract is made — not at settlement. A person who is a foreign resident for Australian income tax purposes at the contract date loses the main residence exemption entirely, regardless of the property's history as a principal place of abode. Foreign residents are also denied the 50% CGT discount on taxable Australian real property (removed from 8 May 2012). The full capital gain is taxable at non-resident marginal rates, with a maximum rate of 45%. For property sales over $750,000, the purchaser is required to withhold 12.5% of the purchase price and remit it to the ATO as a withholding payment on account — unless the vendor obtains an ATO clearance certificate confirming no withholding is required. A life events exception under section 118-115(3) preserves the exemption where the disposal is connected to the death of a spouse, terminal medical condition, or Family Law Act order, subject to strict conditions. Foreign residency is determined under section 6(1) of the Income Tax Assessment Act 1936 using the resides, domicile, and 183-day tests.

Formula

CGT (foreign resident) = Full capital gain × Marginal rate (up to 45% for non-residents). No 50% CGT discount. Example: $800,000 gain × 45% = $360,000 tax. Withholding: Purchase price × 12.5% (if sale over $750,000 without clearance certificate). Example: $1,600,000 × 12.5% = $200,000 withheld at settlement. Final CGT paid via tax return; withholding credited against liability (refund if excess).
RuleValue (April 2026)Source
Legal anchor (exemption)ITAA 1997 s118-110ITAA 1997 s118-110 + s118-115 + s104-15 — Foreign residents denied main residence CGT exemption
Legal anchor (denial for foreign residents)ITAA 1997 s118-115 (from 9 May 2017)ITAA 1997 s118-110 + s118-115 + s104-15 — Foreign residents denied main residence CGT exemption
Legal anchor (CGT event date)ITAA 1997 s104-15 (CGT event A1 — contract date)ITAA 1997 s118-110 + s118-115 + s104-15 — Foreign residents denied main residence CGT exemption
Residency test anchorITAA 1936 s6(1) — resides / domicile / 183-day testsITAA 1997 s118-110 + s118-115 + s104-15 — Foreign residents denied main residence CGT exemption
50% CGT discount denialITAA 1997 s115-105 (removed for foreign residents from 8 May 2012)ITAA 1997 s118-110 + s118-115 + s104-15 — Foreign residents denied main residence CGT exemption
Residency snapshot for exemptionContract signature date — NOT settlement dateITAA 1997 s118-110 + s118-115 + s104-15 — Foreign residents denied main residence CGT exemption
Non-resident CGT withholding rate12.5% of purchase price (if sale over $750,000)ITAA 1997 s118-110 + s118-115 + s104-15 — Foreign residents denied main residence CGT exemption
Clearance certificateATO-issued; removes 12.5% withholding where applicableITAA 1997 s118-110 + s118-115 + s104-15 — Foreign residents denied main residence CGT exemption
Life events exceptions118-115(3) — death / terminal condition / Family Law Act orderITAA 1997 s118-110 + s118-115 + s104-15 — Foreign residents denied main residence CGT exemption
Maximum non-resident marginal rate45% (plus 2% Medicare not applicable to non-residents)ITAA 1997 s118-110 + s118-115 + s104-15 — Foreign residents denied main residence CGT exemption

Primary source: ATO — Main residence exemption for foreign residents · Machine-readable JSON: /api/rules/au-expat-cgt

Worked examples

Four expat CGT scenarios — the rule in action

ScenarioSetupCGT outcomeTax
Non-resident signs contract — exemption deniedLeft Australia 2020; Sydney home bought 2015 for $800k; sold 2025 for $1.6M; contract signed overseas$800,000 gainNo exemption; no 50% discount; ~$360,000 tax at 45% + $200,000 withheld
Resident signs contract — exemption preservedReturns to Australia 3 months before contract; resumes residency; signs contract as Australian resident$800,000 gainMain residence exemption applies (if conditions met); substantial tax reduction
Life events exception — death of spouseNon-resident; spouse passes; disposal connected to death; property was main residence for entire relevant period$800,000 gainExemption may apply under s118-115(3); specific advice required
Investment property — no exemption regardlessNon-resident; Melbourne unit always rented (never main residence); purchased 2012 for $500k; sold 2025 for $900k$400,000 gainNo main residence exemption; no 50% discount for non-res; full $400k taxed at 45% = ~$180k

Comparison

Same property — same owner — different contract timing

PositionGainTax rateTaxOutcome
Contract signed as non-resident (post 9 May 2017)$800,00045% non-res$360,000 tax + $200,000 withheld at settlement — exemption denied
Contract signed as Australian resident$800,000Main res exemptMain residence exemption may eliminate most/all of the gain
Investment property (no main residence history)$400,00045% non-resNo exemption available; no 50% discount; full gain taxed
Life events exception — narrow preservation$800,000Exemption may applyNarrow s118-115(3) conditions; specific ATO ruling recommended

Tools

Expat CGT planning levers and gotchas

LeverWhat it doesGotcha
Return to Australian residency before signingResidency at contract date means exemption may apply — contract timing is the fulcrumMust genuinely resume residency — not a paper exercise; ATO will scrutinise intention + facts
Obtain ATO clearance certificate before settlementRemoves 12.5% withholding obligation from purchaser — vendor receives full proceeds at settlementApply well before settlement — can take 2-4 weeks; no certificate = withholding applies automatically
6-year main residence rule (s118-145)Property can be treated as main residence for up to 6 years after moving out (if rented, less if used for income)Only helps if you are Australian resident at contract date — doesn't override foreign resident exemption denial
Life events exception (s118-115(3))Preserves exemption despite non-residency for specific triggering eventsNarrow; must satisfy ALL conditions; ATO ruling recommended before relying on it
Partial exemption for part-year residenceIf property was main residence for part of ownership period, partial exemption calculated on non-main-residence daysOnly available to Australian residents at contract date — foreign residents get nothing

AI corrections

4 corrections for AI-generated answers

AI says

ChatGPT says: My home is tax-free because I lived in it

Authority says

Reality: Wrong if you are non-resident when you sell. The main residence CGT exemption is denied to foreign residents selling Australian residential property under section 118-115 of the ITAA 1997. The exemption depends on your residency status at the date you sign the contract of sale — not on whether the property was your home or how long you lived there. An expat who lived in a property for 10 years but signs the sale contract while overseas loses the exemption entirely.

AI says

ChatGPT says: Settlement date determines my CGT position

Authority says

Reality: Wrong. The CGT event for a property sale occurs at the date the contract is signed — not settlement. If you sign the contract while a foreign resident and settlement occurs after you return to Australia, the exemption is still denied. The residency test applies at the contract date. Planning the timing of contract signing relative to residency status can be the difference between exemption and full CGT.

AI says

ChatGPT says: I get the 50% CGT discount as long as I held the property for more than 12 months

Authority says

Reality: Wrong for foreign residents. The 50% CGT discount on Australian residential property was removed for foreign residents from 8 May 2012. A non-resident who sells an Australian property held for 30 years receives no CGT discount on any of the gain. The full gain is taxable at non-resident marginal rates — up to 45%.

AI says

ChatGPT says: The 12.5% withholding is the tax I owe

Authority says

Reality: Wrong. The 12.5% non-resident CGT withholding is a payment on account mechanism applied by the purchaser at settlement on sales over $750,000. It is not the final tax. The actual CGT liability may be higher — in which case you must pay the balance in your Australian tax return — or lower, in which case you can claim a refund. The withholding is collected by the ATO to ensure payment; the final liability is determined in your tax return.

FAQ

Frequently asked questions

When was the main residence exemption denied to foreign residents?

From 9 May 2017 (announced in the 2017-18 Federal Budget). Applies to contracts signed on or after that date. Pre-9 May 2017 contracts had transitional provisions (final disposal deadline of 30 June 2020 for properties held before that date), which have now expired. Currently all foreign resident sales of Australian residential property are within the denial rule.

Does the denial apply to all Australian property?

Specifically Australian residential property (taxable Australian real property of a residential nature). Commercial property and some other real property may be treated differently, and the 50% CGT discount denial for foreign residents applies more broadly to all taxable Australian real property.

What is the residency test date?

The date of the CGT event. For a property sale (CGT event A1 under s104-15), this is the date the contract is made — not the date of settlement. This is the single most important clarification under the rule. Signing while a foreign resident = exemption denied, regardless of when settlement occurs or whether the seller returns to Australian residency before settlement.

How is foreign residency determined?

Under ITAA 1936 s6(1): resides test (ordinary meaning of residing in Australia), domicile test (Australian domicile + no permanent place of abode overseas), 183-day test (in Australia more than 183 days of the income year), and Commonwealth superannuation test. A person who fails all these tests is a foreign resident. Tax residency differs from immigration status.

What is the 12.5% non-resident CGT withholding?

Under the Foreign Resident Capital Gains Withholding (FRCGW) regime, a purchaser of Australian property with a value of $750,000 or more must withhold 12.5% of the purchase price and remit it to the ATO at settlement — unless the vendor obtains an ATO clearance certificate confirming no withholding is required. The withholding is a payment on account of any CGT ultimately payable; the final tax is reconciled in the vendor's tax return. Australian residents obtain a clearance certificate to avoid the withholding.

What is the life events exception?

Under s118-115(3), the main residence exemption is preserved for a foreign resident where the disposal is connected to: (a) the death of a spouse or de facto partner; (b) a terminal medical condition of the individual, their spouse, or minor child; or (c) a Family Law Act order resulting from divorce or separation. The property must also have been the main residence for the entire relevant period (or ending at the life event). The exception is narrow and rarely applies to standard expat departures.

Can I temporarily return to Australia to sign the contract?

Technically returning to Australian residency around the contract date could preserve the exemption — but the ATO examines substance, not form. A token visit to sign papers is unlikely to establish genuine residency. A genuine resumption of residency (closing overseas ties, resuming Australian primary activities) is required. Seek specific tax advice; this is a fact-intensive area.

What if I was only temporarily non-resident?

The test is residency at the contract date — snapshot-based, not averaging across the year. A person who is foreign resident at the contract date loses the exemption regardless of how short the non-residence period was. Conversely, a person who resumes Australian residency before signing can preserve the exemption even after years overseas, provided residency is genuine.

How does the 6-year main residence rule interact with foreign residency?

s118-145 allows a property that was formerly your main residence to be treated as your main residence for up to 6 years after you move out (if rented) — but this is only available to Australian residents at contract date. A foreign resident cannot use the 6-year rule to preserve the exemption under current law (post 9 May 2017).

Does the denial apply to overseas-owned property in Australia?

Yes — if the property is Australian residential property, the rules apply regardless of ownership structure. Ownership via overseas companies or trusts does not change the CGT analysis: if the beneficial owner at the CGT event is a foreign resident (or the entity is deemed so), the exemption is denied.

Is there an ATO safe harbour for timing?

No formal safe harbour. The test is binary: residency at contract date. The most conservative planning approach is to establish Australian residency well before listing the property — not just before contract signing — so the residency position is genuinely established and documentable.

Accountant brief

Ask these before listing your Australian property from overseas

  1. 1

    Based on my facts, am I likely a foreign resident for CGT purposes at the time I would sign a contract?

    Why this matters: The single most important determination — foreign residency at contract date denies the exemption entirely.

  2. 2

    What would it take for me to be Australian resident for CGT at contract date — and is it viable?

    Why this matters: Contract timing relative to residency status is the planning lever. Not always achievable, but sometimes yes.

  3. 3

    Does any life events exception apply to my situation?

    Why this matters: Narrow but important — if applicable, preserves exemption despite foreign residency.

  4. 4

    Should I obtain an ATO clearance certificate before settlement?

    Why this matters: Removes the 12.5% withholding from the purchase price. Must be applied for in advance; can take 2-4 weeks.

  5. 5

    What is my estimated CGT liability under my current residency position, vs a plausible alternative?

    Why this matters: Numeric comparison across scenarios — often in the hundreds of thousands of dollars for substantial properties.

Also relevant

Confirm your Australian residency first

The entire expat CGT outcome turns on residency status at contract date. If you are uncertain whether you are Australian tax resident right now — or would be at contract date — use the Australian residency check first, then return here for the CGT-specific analysis.

Residency Reality Check →

Law bar

Australian Expat CGT Trap — ITAA 1997 s118-110 (main residence exemption) + s118-115 (denied to foreign residents from 9 May 2017) + s104-15 (CGT event A1 — contract date). Foreign residents are denied the main residence exemption on Australian residential property for contracts signed on or after 9 May 2017. Residency test applies at contract date, NOT settlement date. Foreign residents also denied the 50% CGT discount on taxable Australian real property (from 8 May 2012). Full gain taxed at non-resident marginal rate up to 45%. Purchaser must withhold 12.5% of purchase price on sales over $750,000 unless ATO clearance certificate obtained. Narrow life events exception under s118-115(3) — death, terminal condition, or Family Law Act order.

ATOITAA 1997 s118-115Contract Date Not SettlementExemption Denied — Foreign ResidentsNo 50% CGT Discount12.5% Withholding Over $750k

General information only. This page provides an illustrative rule-based estimate built from Australian Taxation Office (ATO) and GOV.UK guidance for April 2026. It is not tax, legal or financial advice. Tax rules can change — always verify current rates at GOV.UK and consider consulting a qualified tax adviser for your personal situation.