A New Tax System (Family Assistance) Act 1999

PART 3 - ELIGIBILITY FOR FAMILY ASSISTANCE (OTHER THAN CHILD CARE SUBSIDY AND ADDITIONAL CHILD CARE SUBSIDY)

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Division 1 - Eligibility for family tax benefit

Subdivision A - Eligibility of individuals for family tax benefit in normal circumstances

SECTION 21 When an individual is eligible for family tax benefit in normal circumstances

21(1)
An individual is eligible for family tax benefit if:

(a)

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the individual:

(i) has at least one FTB child; or

(ii) has at least one regular care child who is also a rent assistance child; and

(b)

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the individual:

(i) is an Australian resident; or

(ia) is a special category visa holder residing in Australia; or

(ii) satisfies subsection (1A) or (1B) ; and

(c)

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the individual ' s rate of family tax benefit, worked out under Division 1 of Part 4 but disregarding reductions (if any) under clause 5 or 25A of Schedule 1 and disregarding section 58A and subclauses 31B(3) , 38AA(3) and 38AF(3) of Schedule 1 , is greater than nil.

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History

S 21(1) amended by No 100 of 2023, s 3 and Sch 2 item 1, by inserting " or (1B) " in para (b)(ii), applicable in relation to a claim made on or after 28 November 2023, whether the individual starts to satisfy subsection 21(1B) before, on or after 28 November 2023.

S 21(1) amended by No 17 of 2016, s 3 and Sch 1 item 2, by omitting " is not an absent overseas recipient and " before " has at least one " from para (a)(ii), effective 1 July 2016. For application and saving provision, see note under s 24(10) .

S 21(1) amended by No 141 of 2011, s 3 and Sch 2 item 43, by inserting " and disregarding section 58A and subclauses 31B(3), 38AA(3) and 38AF(3) of Schedule 1 " in para (c), effective 14 May 2012.

S 21(1) amended by No 53 of 2011, s 3 and Sch 1 item 5, by inserting " but disregarding reductions (if any) under clause 5 or 25A of Schedule 1 " after " Part 4 " in para (c), applicable to family tax benefit advances requested on or after 1 July 2011. For transitional provision, see note under Sch 1 cl 5 .

S 21(1) amended by No 146 of 2006, s 3 and Sch 8 item 13, by substituting para (a), effective 1 July 2008. Para (a) formerly read:

(a) the individual has at least 1 FTB child (see section 22 and later provisions); and

S 21(1)(b)(ia) inserted by No 18 of 2001, s 3 and Sch 2 item 4, effective 30 March 2001.

S 21(1) amended by No 94 of 2000, s 3 Sch 8 item 1, by substituting " satisfies subsection (1A); and " for " meets the requirements set out in subparagraph 729(2)(f)(ii), (iii), (iv) or (v) of the Social Security Act 1991 and is in Australia; and " in para (b)(ii), effective 20 September 2000.

S 21(1)(b) substituted by No 45 of 2000, s 3 and Sch 1 item 1. For transitional provisions see note under s 22A. S 21(1)(b) formerly read:

(b) the individual is an Australian resident; and

Visa holders who may qualify for special benefit

21(1A)

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An individual satisfies this subsection if:

(a) the individual is the holder of a visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Social Security Act 1991 ; and

(b) either:

(i) the individual is in Australia; or

(ii) the individual is temporarily absent from Australia for a period not exceeding 6 weeks and the absence is an allowable absence in relation to special benefit within the meaning of Part 4.2 of that Act.

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History

S 21(1A) amended by No 98 of 2012, s 3 and Sch 2 item 1, by substituting " 6 weeks " for " 13 weeks " in para (b)(ii), effective 1 January 2013.

S 21(1A) substituted by No 49 of 2012, s 3 and Sch 6 item 1, effective 26 May 2012. S 21(1A) formerly read:

21(1A)
An individual satisfies this subsection if the individual is the holder of a visa determined by the Minister for the purposes of subparagraph 729(2) (f)(v) of the Social Security Act 1991 , and either of the following applies:

(a) the individual is in Australia; or

(b) the individual:

(i) is temporarily absent from Australia for a period not exceeding 13 weeks; and

(ii) the absence is an allowable absence in relation to special benefit within the meaning of Part 4.2 of that Act.

S 21(1A) amended by No 122 of 2003, s 3 and Sch 6 item 1, by substituting " 13 " for " 26 " in para (b)(i), effective 1 July 2004. Act No 122 of 2003, s 3 and Sch 6 contains the following application provision:

Application
6(1)
The amendments of the A New Tax System (Family Assistance) Act 1999 made by this Schedule apply in relation to absences from Australia that start on or after 1 July 2004.

6(2)
However:

(a) those amendments of subsections 24(2) and (3) and 63(3) of that Act apply in relation to children coming to Australia on or after 1 July 2004; and

(b) those amendments of subsections 24(5) and (6) and 62(3) of that Act apply in relation to individuals returning to Australia on or after 1 July 2004.

S 21(1A) inserted by No 94 of 2000, s 3 Sch 8 item 2, effective 20 September 2000.

Visa holders connected with the Pacific Australia Labour Mobility scheme

21(1B)

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An individual satisfies this subsection if:

(a) the individual is the holder of:

(i) a visa referred to in the regulations under the Migration Act 1958 as a Subclass 403 (Temporary Work (International Relations)) visa; or

(ii) a visa of a kind determined under subsection (1C) of this section for the purposes of this subparagraph; and

(b) either:

(i) the individual is a participant, as a worker, in the scheme known as the Pacific Australia Labour Mobility scheme; or

(ii) the visa is granted on the basis that the individual is a member of the family unit (within the meaning of the Migration Act 1958 ) of such a participant; and

(c) the individual is in a class determined under subsection (1C) .

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21(1C)

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The Minister may, by legislative instrument, determine:

(a) kinds of visas for the purposes of subparagraph (1B)(a)(ii) (subject to subsection (1D) ); and

(b) classes of individuals for the purposes of paragraph (1B)(c) .

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21(1D)

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The Minister must not determine a kind of visa under paragraph (1C)(a) unless the Minister has been advised by the Minister administering the Migration Act 1958 (the Immigration Minister ) that, in the opinion of the Immigration Minister:

(a) the kind of visa has replaced or will replace:

(i) the kind of visa mentioned in subparagraph (1B)(a)(i) ; or

(ii) a kind of visa previously determined under paragraph (1C)(a) ; and

(b) the replacement kind of visa is intended to give the same benefits as the replaced kind of visa.

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21(1E)

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Without limiting paragraph (1C)(b) , a class of individuals may be determined under that paragraph by reference to the fact that an individual holds a visa of a specified kind.

Example:

A visa of a kind referred to in a specified way in the regulations under the Migration Act 1958 or that permits the holder to stay in Australia for at least a specified period.

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Exception

21(2)
However, the individual is not eligible for family tax benefit if another provision of this Subdivision so provides.

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