NSW — Foreign-Person Surcharge: 200-Day Presence Test

Summary

Presence floor

200 or more days in Australia

Window

The 12 months before the taxing date

Taxing date

Midnight 31 December before the land tax year

Second condition

PR / presence not time-limited by visa

Effect if met

'Ordinarily resident' — no surcharge

Authority

Revenue NSW (FATA 1975 s5, Duties Act 1997 s104J)

NSW charges an extra surcharge land tax on residential land owned by a foreign person. The mechanic runs the opposite way to most people's instinct: this is a presence test, not an absence trap. A non-citizen escapes the surcharge only by being ordinarily resident, which needs two things at once — you were actually in Australia for 200 or more days in the 12 months before the taxing date, and your continued presence is not subject to any legal time limitation (you hold permanent residency, not a time-limited visa). Miss either limb and you are a foreign person for that year.

Who it applies to

This test matters if you own — or are buying — residential land in NSW and you are:

• A permanent resident who spends large parts of the year outside Australia.
• A visa holder wondering whether your time in-country lets you escape the surcharge.
• An expat, returning Australian PR, or frequent traveller with a NSW property.

It applies to non-citizens. Australian citizens are treated as ordinarily resident wherever they physically are, so the day count never touches them. For everyone else, the 200-day floor is the gateway — and, as the next section explains, permanent-residency status is the second, non-negotiable half of the test.

The rule — and why it exists

Under s104J of the Duties Act 1997 (NSW), an individual is a "foreign person" — and liable for surcharge land tax on residential land — unless they are an Australian citizen or are "ordinarily resident" in Australia on the taxing date. NSW borrows the definition of ordinarily resident from s5 of the Foreign Acquisitions and Takeovers Act 1975 (Cth). For a non-citizen it has two cumulative conditions:

• The 200-day presence limb. The person has actually been in Australia during 200 or more days of the 12 months immediately preceding the relevant time.
• The status limb. Their continued presence in Australia is not subject to any legal time limitation — in practice, they are a permanent resident, not on a time-limited visa.

Both must hold. Someone on a temporary visa can hit 200 days and still fail, because the status limb is not satisfied. That second limb is not something any day counter can decide for you.

Why it exists: the surcharge targets land held by people whose real home is elsewhere. "Ordinarily resident" is the carve-out for those genuinely settled here — hence a substantial presence floor plus a settled-status requirement, rather than a simple headcount of days.

Counting the days

The 200 is a floor you climb toward, not a ceiling you avoid. You are counting the days you were present in Australia, and you want that total to reach 200 or more.

1. 1Fix the taxing date: for surcharge land tax it is midnight on 31 December before the land tax year, so the look-back window is effectively that calendar year.
2. 2Add up every day you were actually in Australia during those 12 months. The days need not be consecutive.
3. 3If the total is 200 or more, you satisfy the presence limb of the ordinarily-resident test.
4. 4Then confirm the status limb: you must hold permanent residency (your presence is not time-limited by a visa). Both limbs together mean no surcharge.

The statute counts days present, not nights or midnights; Revenue NSW ruling G009 does not spell out part-day arrival and departure treatment, and "days actually in Australia" is generally read as any presence during the day. If you are close to the line, keep your travel records — the burden of showing 200 days sits with you.

Examples

Example 1 — Priya, PR, comfortably resident

Priya holds permanent residency and owns an apartment in Sydney. In the 12 months to 31 December 2026 she was in Australia for 240 days, with a few overseas work trips in between. She clears the 200-day floor and her presence is not time-limited, so she is ordinarily resident — no surcharge.

Example 2 — Daniel, PR, but away too long

Daniel is also a permanent resident, but a long posting abroad meant he spent only 150 days in Australia across the year to 31 December 2026. He satisfies the status limb, yet falls well short of 200 days on the presence limb. For that land tax year he is a foreign person and the surcharge applies.

Example 3 — Yuki, plenty of days but wrong status

Yuki, a Japanese citizen on a time-limited work visa, was in Australia for 300 days over the year. She easily clears the 200-day floor — but her presence is subject to a legal time limitation, so the status limb fails. She remains a foreign person, and the brief 2023 treaty exemption for Japanese citizens no longer helps her (it was reversed in April 2024). The surcharge applies.

Exceptions & edge cases

• Australian citizens are always exempt. A citizen is deemed ordinarily resident regardless of physical presence, so the 200-day count never applies to them.
• The 2023 treaty exemptions are gone. Citizens of New Zealand, Finland, Germany, South Africa, India, Japan, Norway and Switzerland were exempted from early 2023 because of conflicts with Commonwealth tax treaties. That was reversed on 8 April 2024 (Treasury Laws Amendment (Foreign Investment) Act 2024, Cth), which confirmed federal tax agreements do not override state surcharges. Those citizens are again subject to the surcharge, and the High Court upheld the validity of state foreign surcharges in 2025.
• Days need not be consecutive — but a different rule requires that they are. The ordinarily-resident test counts 200 non-consecutive days. Separately, the principal-place-of-residence exemption for permanent residents requires 200 continuous days of presence in the tax year. They are different tests; do not merge them.
• Surcharge purchaser duty uses a floating window. The same ordinarily-resident test governs surcharge duty on a purchase, but there the relevant time is the transaction date, so the 12-month look-back does not line up with the calendar year the way it does for land tax.
• Rate. The surcharge land tax rate rose from 4% to 5% of taxable value from the 2025 land tax year onward.

Because the status limb turns on your PR and visa position — not a day count — it is worth confirming your exact standing with Revenue NSW or an adviser if you are on any kind of time-limited visa, or if your PR status changed during the year. That is where professional advice genuinely earns its keep; the day count itself is straightforward once you know it runs toward 200, not away from it.

Common misconceptions

• "Being away more than ~166 days triggers the surcharge." Wrong shape. There is no absence trigger. The rule is a presence floor: you need 200+ days in Australia to escape the surcharge. Framing it as an absence limit quietly drops the PR/visa condition and inverts the safe direction.
• "200 days in Australia means I'm in the clear." Only half true. You also need the status limb — permanent residency, presence not time-limited. Days alone never settle it for a temporary visa holder.
• "My country has a tax treaty, so I'm exempt." Not since 8 April 2024. The NZ / Finland / Germany / South Africa / India / Japan / Norway / Switzerland exemption was reversed; those citizens are back within the surcharge.
• "Citizens still have to count their days." No — Australian citizens are deemed ordinarily resident and never touch the 200-day test.
• "The 200 days have to be one continuous stay." Not for this test — they can be spread across the 12 months. It is the separate principal-place-of-residence exemption that needs 200 continuous days.

Frequently asked questions

Sources

• Revenue NSW — Ruling G009 (ordinarily resident)
• Revenue NSW — Surcharge land tax
• Federal Register of Legislation — Foreign Acquisitions and Takeovers Act 1975 (Cth) s5
• AustLII — Duties Act 1997 (NSW) s104J