Taxation Administration Act 1953

SCHEDULE 1 - COLLECTION AND RECOVERY OF INCOME TAX AND OTHER LIABILITIES  

Note: See section 3AA .

Chapter 2 - Collection, recovery and administration of income tax  

PART 2-5 - PAY AS YOU GO (PAYG) WITHHOLDING  

Division 14 - Benefits, gains and taxable supplies for which amounts must be paid to the Commissioner  

Subdivision 14-D - Capital proceeds involving foreign residents and taxable Australian property  

SECTION 14-210   WHETHER AN ENTITY IS A RELEVANT FOREIGN RESIDENT  

Is the entity a foreign resident at the time of the transaction ?

14-210(1)    
This subsection applies to an entity at the time a transaction is entered into if, at that time:

(a)    you know that the entity is a foreign resident; or

(b)    you reasonably believe that the entity is a foreign resident; or

(c)    you do not reasonably believe that the entity is an Australian resident, and either:

(i) the entity has an address outside Australia (according to any record that is in your possession, or is kept or maintained on your behalf, about the transaction); or

(ii) you are authorised to provide a related financial benefit to a place outside Australia (whether to the entity or to anyone else); or

(d)    the entity has a connection outside Australia of a kind specified under paragraph (6)(a) ; or

(e)    the * CGT asset to which the transaction relates is:

(i) * taxable Australian real property; or

(ii) an * indirect Australian real property interest, the holding of which causes a company title interest (within the meaning of Part X of the Income Tax Assessment Act 1936 ) to arise.

Note:

This subsection is relevant to whether you must pay an amount to the Commissioner under section 14-200 .

Exception - the entity gives you a clearance certificate

14-210(2)    
Despite subsection (1) , that subsection does not apply to the entity in relation to the transaction if:

(a)    before you pay the Commissioner under section 14-200 in relation to the * CGT asset to which the transaction relates, the entity gives you a certificate about the entity that:

(i) was issued under subsection 14-220(1) ; and

(ii) is for a period covering the time the transaction is entered into; and

(b)    the CGT asset is of a kind described in paragraph (1)(e) of this section.

Exception - the entity gives you a residency or interests declaration

14-210(3)    
Despite subsection (1) , that subsection does not apply to the entity in relation to the transaction if:

(a)    before you pay the Commissioner under section 14-200 in relation to the * CGT asset to which the transaction relates, the entity gives you a declaration that:

(i) is about the entity or the CGT asset; and

(ii) was given under subsection 14-225(1) or (2) ; and

(iii) is for a period covering the time the transaction is entered into; and

(b)    at no time during the period starting when you are given the declaration, and ending immediately before you become the owner of the CGT asset, do you know, or could you reasonably be expected to know, the declaration to be false; and

(c)    for a declaration given under subsection 14-225(1) - the CGT asset is not of a kind described in paragraph (1)(e) of this section; and

(d)    for a declaration given under subsection 14-225(2) :

(i) the requirements in subsection (4) of this section are satisfied in relation to the declaration; or

(ii) the total of the amounts that would be determined in accordance with subparagraphs 14-200(3)(a)(i) and (ii) in relation to the transaction and any related transactions that have been or are being undertaken (assuming those subparagraphs applied) is less than $ 50 million; or

(iii) the transaction is of a kind specified under paragraph (6)(b) , or circumstances specified under that paragraph apply to the transaction.

14-210(4)    
For the purposes of subparagraph (3)(d)(i) , the requirements are that:

(a)    the entity gave the Commissioner a notice under subsection 14-226(1) in relation to the declaration:

(i) if the period mentioned in subsection (5) of this section is more than 31 days - at least 28 days before the end of the period; or

(ii) if the period mentioned in that subsection is not more than 31 days - before, or as soon as reasonably practicable after, the start of the period but before the end of the period; and

(b)    the entity gave you a declaration under subsection 14-225(2A) in relation to the notice before you became the owner of the * CGT asset.

14-210(5)    
For the purposes of paragraph (4)(a) , the period:

(a)    starts when the transaction is entered into; and

(b)    ends immediately before you became the owner of the * CGT asset.

14-210(6)    
The Minister may, by legislative instrument, make a determination:

(a)    for the purposes of paragraph (1)(d) , specifying a kind of connection outside Australia for an entity; or

(b)    for the purposes of subparagraph (3)(d)(iii) , specifying a kind of transaction, or specifying circumstances applicable to the transaction.