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12 Jul 12 New Zealand temporary visa holder - TD 2012/18

On 11 July 2012, the ATO issued Taxation Determination TD 2012/18 entitled "Income tax: does a New Zealand citizen who was present in Australia as the holder of a temporary visa granted under section 32 of the Migration Act 1958 (a Special Category Visa) that ceased to be in effect when they departed Australia, still hold a temporary visa for the purposes of paragraph (a) in the 'temporary resident' definition in s 995-1(1) of the Income Tax Assessment Act 1997?"

It was previously released in draft form as TD 2012/D3

The answer to the question posed is:

"Yes. If a New Zealand citizen who was present in Australia as the holder of a Special Category Visa departs Australia, they will still 'hold a temporary visa' for the purposes of paragraph (a) in the 'temporary resident' definition in subsection 995-1(1) of the Income Tax Assessment Act 1997 (ITAA 1997)...

Although a Special Category Visa is a visa to remain in, but not re-enter, Australia, and therefore ceases to be in effect if the holder leaves Australia, a New Zealand citizen with a New Zealand passport has an ongoing right to re-enter Australia on another Special Category Visa. As such, the New Zealand citizen will be treated as holding a temporary visa granted under the Migration Act 1958 (the Migration Act) for the purposes of paragraph (a) of the 'temporary resident' definition in subsection 995-1(1) of the ITAA 1997, provided that they continue to be entitled to re-enter Australia on presentation of their New Zealand passport."

 


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