Notions of residence

Notions of residence

When you move between different countries during the year and in particular, if you travel back and forth, because you have some ties to several places, makes it difficult to determine what your primary residence is. Moreover, different countries and even different laws within a single country (such as Germany) may apply different rules to determine the residency of a person. In Germany, there are the following notions of residence:

• Primary residence (Lebensmittelpunkt, Mittelpunkt der Lebensinteressen). This is the place where a person has most of their personal ties and intends to live permanently despite temporary absence. Its definition becomes fuzzy whenever the individual intentions of a person come in, as they can change over time. For example, an Australian citizen with marital partner and children living in Australia may be able to argue that his primary residence is in Australia, even if he lives and works in Germany for more than a year. Even if it later turns out that this Australian citizen stays in Germany permanently, his primary residence only changes based on these new intentions. Vice versa, a German student spending five years of their life completing a PhD in the US may continue to have their primary residence in Germany if his family, friends and social circles continue to be in Germany and he has the clear intention to return to this specific place.
  The primary residence is particularly important in the German tax law when deduct expenses resulting from a job-related second household (beruflich bedingte doppelte Haushaltsführung), i.e., only if a tax resident can argue that they have second residence (Zweitwohnsitz) away from their primary residence (Lebensmittelpunkt) due to their job, they may be able to deduct certain expenses (rent of secondary residence, travel between primary and secondary residence etc.) from their taxes. Note that the primary residence does not necessarily need to coincide with the primary registered address (gemeldeter Erstwohnsitz), as a registered address (Meldeadresse) in Germany is automatically the primary registered address (Erstwohnsitz), even if the primary residence (Lebensmittelpunkt) of this person may be outside of Germany.

• Registered addresses (Meldeadresse). If you live somewhere in Germany, you need to register with the local authorities (Einwohnermeldeamt).

• Residence (Wohnung mit Schlüsselgewalt). A regular residence of a person is a place they have access to (i.e., they have the keys and the permission to stay there whenever they want) and which provides basic amenities (a place to sleep, a bathroom and typically also some type of kitchen).

• Habitual residence (gewöhnlicher Aufenthalt). This is typically the country or the place where you spent more than 183 days per year. If you do not spend more than 183 days at any one place, it may be the place where you spend most days during a given year.

Tax residency (unbeschränkte Steuerpflicht)

A person is a tax resident of Germany if they have a regular or habitual residence there, i.e., they either have access to a place to live or spend most of their time there. It is very important to emphasize that the regular residence (Wohnsitz mit Schlüsselgewalt, see above) does not require that the person actually spends time in Germany. A German student living abroad, but with access to his old room at his parents' place may be sufficient to constitute tax residency in Germany.

Registration requirement (Meldepflicht)

If you have residence in Germany, you are required to register it with the authorities within two weeks of moving into the new residence, as stipulated in BMG § 17 (1). There can be a fine if this registration is not completed in time. If you

While these definitions are clear in most cases, there are again various cases that are subtle. For example if a student leaves Germany for an extended period of time, but keeps their room at their parents' place or subleases their room in a shared flat, the German authorities often accept that the person stays registered. On the other hand, it is also accepted that they deregister, even if some of their possessions are still left behind. In the end, it comes down to intentions and interpretations, i.e., if the student intends to still live there long-term and does not interpret it as just occasional visits (which can be fluent difference).

Health insurance requirement (Krankenversicherungspflicht)

If you live in Germany, you are required to have a recognized German health insurance (public or private). Most foreign private insurances will not be accepted, but if you are insured through another European country (e.g., by being simultaneously a resident of Denmark or Sweden), you will not need to get German insurance.

Since 2009, everybody with a domicile (Wohnsitz) in Germany is required to have German health insurance, as stipulated in VVG § 193 (3). It is subtle how this definition of domicile relates to the other definitions relevant for taxes and the registration requirement. In principle, the different definitions can be independent, even though the definition of domicile is often treated similar to the primary residence.

For example if a student moves to another country to study even for an extended period of time, they may keep their German address, such as shared flat where they sublease their room or a room at their parents' place. In this case, it is often accepted to stay registered at the respective address. Moreover, from a tax perspective such a student will likely stay a tax resident of Germany (unbeschränkte Steuerpflicht) due to access to the residence and in many situations one may even argue that the respective place is the primary residence (Lebensmittelpunkt), because family and friends still live there. However, if this person actually spends most of their time in another country the health insurance may still accept this (proof of flights, immigration visa etc.) to relieve the student from the requirement of keeping a German health insurance. This makes a lot of sense if the German health insurance would not cover the student in the respective country (such as countries outside of the EU, e.g., the US or Australia), while it may make sense to stay insured within Europe.

Frequently Asked Questions

• Do I need to register in Germany after I arrive?
  Yes, you should register within two weeks after moving into a new residence (flat etc.). If you are temporarily accomodated in a house or holiday flat, you may be able to wait until you move somewhere more permanently, but if you stay for longer in temporary housing, you may also be able to register under this address.

• Do I need to deregister when leaving my German residence?
  If you move to another German residence, you will be automatically deregistered once you register at your new place. If you move abroad, you need to deregister provided that you completely abandon the respective German residence.

• Can I stay registered in Germany?
  It depends if you still have access to accommodation. If you still have a flat (rental or ownership) of a flat in Germany, which you could use and which includes some of your possession, it is usually ok to stay registered. A typical case of a German student moving abroad, but keeping a room at their parents' address, usually allows also to stay registered.

• What are the advantages of staying registered in Germany?
  You will be able to easily apply for an ID or passport at the local registration office without any surcharges. If you are a German citizen, you will also receive automatic voting instructions for public votes.

• What are the disadvantages of staying registered in Germany?
  In most cases, staying registered is interpreted as a strong indication that one still has a residence in Germany and is thus a tax resident of Germany (unbeschränkte Steuerpflicht). If you want to avoid this, it is best to deregister, but note that this does not automatically remove tax obligations, as you will still be a tax resident if you have keys to an available personal accomodation (even if you are not registered there). Another disadvantage is that applying for a replacement passport abroad is usually cheaper if you can show a deregistration statement.

Summary

The different definitions work well in traditional scenarios where a person lives longterm at a single place and only moves sporadically, but permanently with a clear will to relocate long-term. The different definitions become fuzzy for scenarios, where a person does not know yet (or does not want to decide) where they live long-term, in particular if several countries are involved.

In practice, there is a lot of freedom to judge the individual situation, for which also intentions play an important role. Therefore, it is a good idea to have the different definitions in mind and then clarify the respective intentions, before discussing the matters with the respective official representatives (employees of tax office, registration office or health insurance).