German Tax Knowledge · § 8 AO
German Tax Residence Despite Moving Abroad
When can German tax residence continue after moving abroad? The decisive factor is not deregistration, but whether a dwelling in Germany remains available under circumstances indicating that it is retained and used as a home.
§ 8 AO
German Tax Residence Depends on the Actual Facts
Under § 8 of the German Fiscal Code (AO), a person has a residence where they maintain a dwelling under circumstances indicating that they will retain and use it. Moving abroad therefore does not automatically end German tax residence on the date of departure.
The key question is whether a dwelling suitable for living remains actually available after the move and whether the objective circumstances indicate continued use. A person can have more than one tax residence in Germany and abroad at the same time.
If German tax residence continues, unlimited German income tax liability generally continues as well. A center of vital interests abroad may then become relevant for treaty residence, but does not automatically eliminate German residence under domestic law.
Analysis
Three Questions Are Central
Is a Dwelling Still Available?
The premises must objectively be suitable for permanent living. Ownership is not required.
Can the Person Use It?
The dwelling must actually be available. A property rented out long-term to third parties will generally not be available to the owner as their own home.
Is It Retained as a Home?
The overall circumstances must indicate use as the person’s own home rather than merely occasional visits or holiday stays.
Holding a Dwelling
Actual Control Over the Dwelling Is Decisive
Owned or Rented Dwelling
Both ownership and tenancy can establish tax residence. What matters is not legal ownership, but the actual ability to use the premises as one’s own home.
Dwelling with Family Members
Rooms in the home of parents or other relatives can also establish residence in individual cases if they are permanently available for personal use and are genuinely maintained as the person’s own accommodation.
Fully Rented-Out Dwelling
If the former home is rented to third parties on a long-term basis and no personal right of use remains, this generally weighs against continued residence.
Only Personal Property Remains
The fact that furniture or personal belongings remain in Germany is not sufficient by itself. What matters is whether a usable dwelling remains available as the person’s own home.
Use
There Is No Fixed Minimum Number of Days
Residence under § 8 AO does not require the German dwelling to be used permanently or predominantly. Use at longer intervals may still be sufficient if the dwelling retains the character of the person’s own home.
Mere visits, short holiday stays or use solely for administrative purposes will generally not be sufficient. The distinction depends on an overall assessment of the individual facts.
- no fixed 183-day threshold for § 8 AO
- no statutory minimum number of overnight stays per year
- regular use can occur at longer intervals
- mere visits or holiday stays are generally insufficient
- the residential character of the use is decisive
Family Home
If the Family Remains in Germany, the Residence Risk Increases Significantly
Spouse and Children Remain in Germany
If the former family home remains available to the spouse who moved abroad during visits, this often strongly indicates continuing German tax residence.
Separate Household Abroad
A complete household abroad does not rule out an additional German residence. Multiple residences are possible under German tax law.
Permission to Stay Is Not Automatically Residence
The ability to stay occasionally with relatives is not automatically sufficient. What matters is whether a separate accommodation is genuinely and permanently kept available.
The Tax Treaty Comes Afterwards
If residence exists both in Germany and abroad, an applicable tax treaty may assign treaty residence to one country under its tie-breaker rules.
Time Abroad
Even Several Years Abroad Do Not Necessarily End German Residence
Temporary Assignment Abroad
Where work abroad is limited from the outset and a usable German dwelling is retained, German tax residence can continue.
Study or Training Abroad
Even during several years abroad for education or training, the actual availability and use of the German dwelling remain decisive. There is no general rule based solely on the duration of the stay abroad.
Permanent Move Abroad
A permanent move abroad points toward terminating German residence, but the decisive question remains whether the former German accommodation was actually given up.
Later Developments as Evidence
Later developments may provide evidence about the actual circumstances in the year of departure. The relevant facts nevertheless remain those of the respective tax period.
Ending Residence
For a Clear Departure, the Actual Housing Option Must End
The clearest position arises where the former dwelling is given up, the lease is terminated, the property is sold, or it is transferred to third parties so that the taxpayer can no longer use it at any time.
No single measure is mandatory in every case. However, the more the dwelling, control over keys, personal use and family connection continue, the harder it becomes to argue that German tax residence has ended.
- terminate the lease or sell the dwelling
- exclude any personal right of use when renting to third parties
- consider control over keys and actual access
- document actual use after the move
- registration law is only supporting evidence
- analyze treaty issues separately from § 8 AO
Evidence
Which Documents Can Help in a Dispute with the Tax Office?
Dwelling
Lease termination, sale, rental agreement with third parties, handover records and evidence that personal use was no longer possible.
Presence
Travel records, calendars, credit-card records and other suitable documentation can help demonstrate actual presence and use.
Personal Circumstances
A foreign lease, employment, family relocation and other objective facts can support the overall picture of the move abroad.
Typical Situations
When German Residence Often Continues or Becomes Disputed
Owned Apartment Remains Vacant
The apartment remains fully furnished and can be used at any time. This points strongly toward continuing German residence.
Dwelling Is Rented Out Long-Term
If there is no personal access during the rental period, this generally weighs against continuing to hold the dwelling.
Family Remains in the German Home
The taxpayer works abroad but regularly returns to the family home. German tax residence is often likely in this situation.
Room at the Parents’ Home
A permanently available personal room can establish residence depending on actual use; a mere possibility to visit is not automatically sufficient.
Only a Few Days in Germany
A low number of days in Germany does not automatically rule out residence if the dwelling continues to be used as the person’s own home.
Deregistered but Dwelling Retained
Deregistration alone does not end tax residence. A dwelling that remains available can result in continuing unlimited German tax liability.
Further Reading
Related Topics
Frequently Asked Questions
German Residence Despite Moving Abroad
Does deregistration with the local authority end my German tax residence?
Do I need to spend more than 183 days in Germany to have a residence there?
Can a vacant owned apartment establish German tax residence?
Can I have German tax residence even if my center of life is in the U.S. or Switzerland?
How can I terminate German tax residence as clearly as possible?
German Tax Advice
Have You Moved Abroad but Still Have a Dwelling in Germany?
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