Foreign status changes

​​​​​If your foreign status changes, you may be eligible to apply for a refund of the surcharge.

A person must notify the Commissioner of State Revenue within 14 days if the person becomes a foreign person​ within 3 years of the acquisition of the land. The transaction will be reassessed as if at the time of the acquisition the person was a foreign person. The additional duty is payable within 90 days of the person becoming a foreign person.

​​For additional information see the Commissioner's Revenue Ruling Section 30M Discretion. ​

A natural person or a discretionary trust that ceases to be foreign ​within 6 months of the dutiable transaction, may apply to the Commissioner, in writing, for a refund of the surcharge paid.

For a discretionary trust to be reassessed as no longer being foreign, it will be necessary that:

  • at the time of the dutiable transaction, the trust was a foreign trust;
  • under the terms of the trust, the trustee has a discretion in regard to the distribution of capital;
  • the trustee in the capacity of trustee was the transferee in respect of the dutiable transaction;
  • the trust deed of the trust has been amended, and as a result of the amendment, the trust is no longer a foreign trust;
  • the amendment of the trust deed was undertaken within six months of the dutiable transaction, or within six months of 30 March 2020; and
  • the trustee has not transferred or distributed all or any part of the property.

New Zealand special category visa

If a New Zealand citizen who is the holder of a Special Category visa (subclass 444) within the meaning of the Migration Act 1958 ​of the Commonwealth temporarily leaves Australia, the visa is withdrawn, meaning that the person may become liable for FIDS.

To overcome this issue, the Commissioner has issued a determination under section 30M of the Act whereby a New Zealand citizen that temporarily leaves Australia will not be deemed a foreign person in the following circumstances:

  • the person is a natural person; and
  • the person was a citizen of New Zealand at all material times; and
  • the person was in Australia at the time of the dutiable transaction and held a Special Category visa (subclass 444); and
  • the person's principal residence was in Australia at all material times; and
  • the person, within three (3) years of the dutiable transaction, temporarily leaves Australia for a period of three months or less within any calendar year.  
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​How to apply for a surcharge refund

​Foreign discr​etionary trust
If you have previously been assessed for FIDS on a transfer of land to a foreign discretionary trust and within 6 months of:
  •  the original transfer date; or
  •  Royal Assent of the Duties Amendment Act 2019 (30 March 2020); 
the Trust Deed has been amended with the result that the trust is no longer a foreign trust as defined under the Duties Act 2001, you can apply for a refund of the FIDS amount by:
Natural person

If you have previously been assessed for FIDS on a transfer of land and within 6 months of the date of the original transfer you ceased to be a foreign natural person as defined under the Duties Act 2001 (the Act), you can apply for a refund by: 

​Commissioner's discretion

Under section 30L of the Act, a transferee who is a foreign person and who is liable for FIDS can apply to the Commissioner in writing to be considered non-foreign. The Commissioner has the discretion to either:

  • determine that the person is not a foreign person; or
  • refuse the application.

This discretion is applied on a case by case basis, and a determination by the Commissioner under section 30L is a non-reviewable decision, meaning that a taxpayer cannot object or appeal a decision under this section. 

As​ the Act already includes specific FIDS exemptions, it is likely that this discretion will only be applied in exceptional circumstances under which the imposition of FIDS would be inconsistent with the intention of the FIDS provisions.​


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