ATO Interpretative Decision

ATO ID 2002/338 (Withdrawn)

Income Tax

• Reason for withdrawal: Decision invalid because the Commissioner of Taxation is not empowered to issue rulings or ATO Interpretative Decisions on Eligibility for Family Tax Benefits. Please refer to the Family and Community Services Website for further information on this topic.
  This document incorporates revisions made since original publication. View its history and amending notices, if applicable.

Issue

Is a taxpayer eligible for Family Tax Benefit (FTB) under section 21 of A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) if they are holding a bridging visa?

Decision

Yes. A taxpayer is eligible for FTB under section 21 of the Family Assistance Act if they are holding a bridging visa, as the taxpayer is considered a resident of Australia.

Facts

The taxpayer is currently residing in Australia under the terms of a bridging visa.

The taxpayer has applied for permanent residence in Australia.

The taxpayer cares for 3 dependant children.

Centrelink considers the taxpayer an Australian resident as the bridging visa acts as a special purpose visa in accordance with their requirements and those of subsection 7(2) of the Social Security Act 1991 (SSA 1991) and the taxpayer is considered to be residing in Australia in accordance with subsection 7(3) of the SSA 1991.

Reasons for Decision

To be eligible for FTB an individual must provide care to a dependant child, and meet eligibility requirements under Family Assistance law. An individual is eligible for FTB if they are an Australian resident for social security purposes.

Subsection 7(2) of the SSA 1991 provides that an Australian resident includes a person who resides in Australia and is the holder of a special purpose visa who is likely to remain permanently in Australia.

Subsection 7(3) of the SSA 1991 provides that in determining whether an individual resides in Australia, regard must be had to:

(a)

the nature of the accommodation used by the person in Australia;

(b)

the nature and extent of the family relationships the person has in Australia;

(c)

the nature and extent of the person's employment, business or financial ties with Australia;

(d)

the nature and extent of the person's assets located in Australia;

(e)

the frequency and duration of the person's travel outside Australia; and

(f)

any other matter relevant to determining whether the person intends to remain permanently in Australia.

Bridging visas may be granted to an eligible non-citizen who satisfies the criteria for a bridging visa under subsection 31(3) of the Migration Act 1958, and permit the non-citizen to remain in, travel to, enter and remain in Australia during a specified period or until a specified event happens.

The taxpayer is able to remain in Australia under the terms of the bridging visa, pending the outcome of their application for permanent residence in Australia. According to advice received from Centrelink, the taxpayer is considered to be an Australian resident on the basis that the bridging visa acts as a special purpose visa and the taxpayer is therefore considered to be residing in Australia.

As the taxpayer provides care for three dependant children and is considered to meet the criteria for Australian residency for the purposes of the Family Assistance Act, they are eligible for FTB.

Legislative References:
A New Tax System (Family Assistance) Act 1999
   section 21

Keywords
Family tax assistance
Residence in Australia

Business Line:  Small Business/Individual Taxpayers

Date of publication:  28 March 2002

ISSN: 1445-2782