A foreign person includes:
• a foreign corporation;
• a foreign natural person; and
• a foreign trustee (including a nominee).
A corporation or trust acquiring residential or primary production property will be required to satisfy its TRO Agent (or the Commissioner of State Revenue if it is not using a TRO Agent) that it is not foreign in order to avoid imposition of the FIDS.
Foreign natural person
A foreign natural person is an individual who is not acting in the capacity as a trustee of a trust, who is not:
- Australian citizen within the meaning of the Australian Citizenship Act 2007 of the Commonwealth.
- the holder of a permanent visa within the meaning of the Migration Act 1958 of the Commonwealth.
- a New Zealand citizen who is the holder of a special category visa within the meaning of the Migration Act 1958 of the Commonwealth.
Foreign corporationA foreign corporation is a corporation incorporated:
- outside of Australia; or
- in Australia in which foreign natural person/s, foreign corporation/s, or trustee/s of foreign trust/s have a significant interest in the corporation.
All corporations are presumed to be foreign unless proved otherwise.
A foreign trustee is a person who holds, agrees to hold, or has acquired, dutiable property on trust for a foreign trust. A foreign trustee can be an Australian citizen or corporation in Australia.
Foreign trustA foreign trust is a trust in which a foreign natural person, foreign corporation, or a foreign trustee has a substantial interest in the trust. All trusts are deemed to be foreign unless proved otherwise.
Discretionary trustsA trustee under a discretionary trust generally has a power or discretion to distribute the capital of the trust estate to a person or a member of a class of persons. Any such person is taken to have a beneficial interest in the maximum percentage of the capital of the trust estate that the trustee is empowered to distribute to that person. This means that any discretionary trust that has any potential foreign beneficiaries is likely to be a foreign trust.