Income Tax Assessment Act 1936

PART VIIB - MEDICARE LEVY AND MEDICARE LEVY SURCHARGE  

SECTION 251R   INTERPRETATION  

251R(1)  
(Repealed by No 12 of 2012)

251R(1A)  
(Repealed by No 12 of 2012)

251R(2)  


If, during any period, 2 persons (whether of the same sex or different sexes):


(a) had a relationship that was registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; or


(b) lived together in a relationship as a couple on a genuine domestic basis, although not legally married to each other;

this Part and any Act imposing Medicare levy has effect in relation to the period as if the persons were married to each other.

251R(2A)  


If, during the period, either or both of the persons was legally married to another person, or in a relationship mentioned in paragraph (2)(a) with another person, this Part and any Act imposing Medicare levy has effect as if the person or persons were not legally married to, or in a relationship mentioned in paragraph (2)(a) with, the other person or persons.

251R(3)  


Subject to subsections (4), (5), (6), (6B), (6C) and (6D), a person shall be taken to have been a dependant of another person for the purposes of this Part during any part of the year of income in which -


(a) the first-mentioned person was a resident of Australia;


(b) the first-mentioned person was -


(i) the spouse of the other person;

(ii) a child of the other person less than 21 years of age; or

(iii) a child of the other person not less than 21 years of age but less than 25 years of age and receiving full-time education at a school, college or university; and


(c) the other person contributed to the maintenance of the first-mentioned person.

251R(4)  


A child referred to in subparagraph (3)(b)(iii) shall not be taken to have been a dependant of a person for the purposes of this Part during a period being the whole or a part of a year of income unless the person is entitled to a notional tax offset in respect of that child under Subdivision 961-A of the Income Tax Assessment Act 1997 .

251R(5)  


If, in relation to a period, being the whole or a part of a year of income:


(a) the parents of a child referred to in paragraph (3)(b) lived separately and apart from each other; and


(b) the child would, but for this subsection, be taken, for the purposes of this Part, to be a dependant of each of his or her parents in respect of that period; and


(c) both of the parents or their spouses, being partners as defined in the A New Tax System (Family Assistance) Act 1999 , are eligible for family tax benefit at the Part A rate under that Act in respect of that child (whether the child is an FTB child or a regular care child within the meaning of that Act) in respect of the period; and


(d) the Families Secretary has determined, under Subdivision D of Division 1 of Part 3 of that Act, each parent ' s or spouse ' s percentage of care for the child during a care period (within the meaning of that Act);

the child is to be taken to be a dependant of each parent for the purposes of Part VIIB of this Act, for so much only of that period as corresponds with that percentage of care.

251R(6)  


For the purposes of paragraph (3)(c), a person shall be taken to have contributed to the maintenance of another person during any period during which the person and that other person resided together, unless the contrary is established to the satisfaction of the Commissioner.

251R(6A)  


A reference in subsections (6B), (6C) and (6D) to an eligible prescribed person in relation to a period is a reference to a person who would, apart from subsections 251U(2) and (3) , be taken to have been a prescribed person, for the purposes of this Part and of any Act imposing Medicare levy, during that period by virtue of paragraph 251U(1)(a), (b), (c), (ca), (caa) or (cb) .

251R(6AA)  
(Repealed by No 17 of 1996)

251R(6B)  


For the purposes of this Part, where:


(a) a person (in this subsection called the " first person " ) was an eligible prescribed person in relation to a period in a year of income; and


(b) apart from this subsection, another person (in this subsection called the " leviable person " ) would be a dependant of the first person during that period; and


(c) Medicare levy is payable by the leviable person upon the taxable income of the year of income;

the leviable person is not to be taken to have been a dependant of the first person during that period.

251R(6C)  


For the purposes of this Part, where:


(a) a person (in this subsection called the " first person " ) was an eligible prescribed person in relation to a period in a year of income; and


(b) another person (in this subsection called the " spouse " ) was the spouse of the first person during the whole of that period; and


(c) the spouse was not an eligible prescribed person in relation to that period; and


(d) Medicare levy is payable by the spouse upon the taxable income of the year of income; and


(e) apart from this subsection, a child of both the first person and the spouse would be a dependant of both the first person and the spouse during that period;

that child is not to be taken to have been a dependant of the first person during that period.

251R(6D)  


Subject to subsection (6F), for the purposes of this Part, where:


(a) a person (in this subsection and subsections (6E) to (6H) (inclusive) called the " first person " ) was an eligible prescribed person in relation to a period in a year of income; and


(b) another person (in this subsection called the " spouse " ) was the spouse of the first person during the whole of that period; and


(c) the spouse was an eligible prescribed person in relation to that period; and


(d) apart from this subsection, Medicare levy would be payable by both the first person and the spouse upon their respective taxable incomes of the year of income; and


(e) apart from this subsection, a child of both the first person and the spouse would be a dependant of both the first person and the spouse during that period; and


(f) the first person and the spouse have entered into an agreement (in subsections (6E) to (6H) (inclusive) called the " family agreement " ) stating that, for Medicare levy purposes, that child:


(i) is not to be treated as a dependant of the first person during that period; and

(ii) is to be treated as a dependant of the spouse during that period;

that child is not to be taken to be a dependant of the first person during that period.

251R(6E)  


The family agreement must be entered into on or before the date of lodgment of the return of income of the first person for the year of income concerned or within such further time as the Commissioner allows.

251R(6F)  


Subsection (6D) does not apply, and is taken never to have applied, if the first person fails to retain the family agreement until the end of:


(a) 5 years beginning on the date of lodgment of the first person ' s return of income for the year of income concerned; or


(b) a shorter period determined by the Commissioner in writing for the first person; or


(c) a shorter period determined by the Commissioner by legislative instrument for a class of persons that includes the first person.

251R(6FA)  


A determination under paragraph (6F)(c) may specify different periods for different classes of taxpayers.

251R(6G)  


Where the family agreement is lost or destroyed and the Commissioner is satisfied that the first person has a document (in this subsection called the " substitute family agreement " ) that:


(a) is a copy of the family agreement; or


(b) properly records all the matters set out in the family agreement and was in existence when the family agreement was lost or destroyed;

the substitute family agreement is to be taken, for the purposes of this section, to be, and to have been at all times after the family agreement was lost or destroyed, the family agreement.

251R(6H)  


Where the family agreement is lost or destroyed and the Commissioner is satisfied that:


(a) the family agreement was lost or destroyed because of circumstances beyond the control of the first person; and


(b) subsection (6G) does not apply;

subsection (6F) does not apply and is to be taken never to have applied.

251R(6J)  


Section 170 does not prevent the amendment of an assessment at any time for the purposes of giving effect to subsection (6F), (6G) or (6H).

251R(7)  


In this Act (other than this Part, the definition of " year of tax " in subsection 6(1) and Division 17 of Part III ), unless the contrary intention appears, " income tax " or " tax " includes Medicare levy payable in accordance with this Part and Medicare levy (fringe benefits) surcharge.

251R(8)  


In determining for the purposes of this Part and of any Act imposing levy whether a person was, or but for subsection 251U(2) would have been, or was not, a prescribed person during the whole or a part of the year of income that commenced on 1 July 1983, that year of income shall be deemed to be constituted by the period commencing on 1 February 1984 and ending on 30 June 1984.

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