Foreign Acquisitions and Takeovers Regulation 2015 (Cth)

PART 3 - EXEMPTIONS  

Division 4A - Exemptions relating to vacancy fees  

SECTION 43D   EXEMPTION - RESIDENTIALLY OCCUPIED  

43D(1)    
Subject to subsection (4), if a foreign person acquires an interest in residential land on which a dwelling is situated, the excluded provisions do not apply to the foreign person in relation to a vacancy year in the circumstances covered by subsection (2).

43D(2)    
The circumstances covered by this subsection are that, during the vacancy year, the dwelling was residentially occupied for fewer than 183 days for either or both of the following reasons:

(a) the dwelling was incapable of being occupied as a residence;

(b) a person (who may or may not be the foreign person) ordinarily occupying the dwelling as a residence was absent from the dwelling to receive medical care, or residential care (within the meaning of the Aged Care Act 1997 ), that is supported by evidence.

43D(3)    
Without limiting paragraph (2)(a), a dwelling is incapable of being occupied as a residence if:

(a) the dwelling is damaged, unsafe or is otherwise unsuitable to be occupied as a residence; or

(b) the dwelling is undergoing substantial repairs or renovations; or

(c) occupation of the dwelling as a residence is prohibited, or made impracticable, by an order of a court or tribunal or a law of the Commonwealth, a State or a Territory.

43D(4)    
The excluded provisions apply to the foreign person in relation to a vacancy year if the foreign person is taken to be liable to pay a vacancy fee for that year under section 115C of the Act as a result of subsection 115D(3) of the Act.

Note: Subsection 115D(3) of the Act provides that a foreign person is liable to pay a vacancy fee, regardless of the number of days in a vacancy year the foreign person ' s dwelling was residentially occupied, if the Commissioner of Taxation is satisfied the person has not given a vacancy fee return to the Commissioner as required under section 115D of the Act.