31Variation of instalment entitlement determination to reflect changes in eligibility

#### 31 Variation of instalment entitlement determination to reflect changes in eligibility (1) If: (a) a determination is made under section 16 that a claimant is entitled to be paid family tax benefit by instalment; and (b) after the determination is made an event occurs; and (c) when the Secretary becomes aware of the occurrence, the Secretary considers that, if he or she were making the determination immediately after the occurrence, he or she would conclude: (i) that the claimant was no longer eligible for family tax benefit; or (ii) that the claimant was still so eligible but that the rate of family tax benefit should be a different rate to the rate previously determined; the Secretary must, subject to subsection (2): (d) if subparagraph (c)(i) applies—vary the determination so that the claimant is not entitled to be paid family tax benefit with effect from the date of occurrence; and (e) if subparagraph (c)(ii) applies—vary the determination so as to establish the different rate with effect from the date of occurrence. (1A) For the purpose of subsection (1), the occurrence of an event includes the expiration of a period of time if the expiration of that period is relevant to the operation of this Act. (1B) The reference in subsection (1) to the occurrence does not include the occurrence of any event: (a) that causes the claimant to provide a revised estimate of the claimant’s adjusted taxable income to the Secretary; or (b) that causes the Secretary to revise an estimate of the claimant’s maintenance income; unless: (c) the event also affects the claimant’s eligibility for family tax benefit, or the rate of family tax benefit payable to the claimant, for a reason other than the amount of the claimant’s adjusted taxable income or maintenance income; or (d) the event is the claimant’s becoming, or ceasing to be, a member of a couple. (1C) If: (a) the Secretary under paragraph (1)(d) varies a determination in relation to an individual because of subsection 24(1) of the Family Assistance Act; and (b) the child concerned comes to Australia within the period of 13 weeks beginning on the day after the end of: (i) the 6‑week period referred to in subsection 24(1) of the Family Assistance Act; or (ii) if that 6‑week period has been extended under subsection 24(7) or (9) of the Family Assistance Act—that period as so extended; and (c) the Secretary is satisfied that the individual is eligible for family tax benefit on the day the child comes to Australia; then the Secretary must vary the determination so that the individual is entitled to be paid family tax benefit with effect from the date of the child coming to Australia. > Note: The individual does not have to make another claim for family tax benefit. (1D) If: (a) the Secretary under paragraph (1)(d) varies a determination in relation to an individual because of subsection 24(4) of the Family Assistance Act; and (b) the individual returns to Australia within the period of 13 weeks beginning on the day after the end of: (i) the 6‑week period referred to in subsection 24(4) of the Family Assistance Act; or (ii) if that 6‑week period has been extended under subsection 24(7), (9) or (10) of the Family Assistance Act—that period as so extended; and (c) the Secretary is satisfied that the individual is eligible for family tax benefit on the day the individual returns to Australia; then the Secretary must vary the determination so that the individual is entitled to be paid family tax benefit with effect from the date of the individual’s return to Australia. > Note: The individual does not have to make another claim for family tax benefit. (1E) Subsections (1C) and (1D) do not limit any later application of subsection (1) in relation to the determination. > Note: Example: The Secretary under subsection (1D) varies the determination so that the individual is entitled to be paid family tax benefit. > Note: The individual remains in Australia for 8 weeks, but then leaves Australia again for more than 6 weeks. > Note: Because of subsection 24(4) of the Family Assistance Act, the Secretary may, under paragraph (1)(d) of this section, vary the determination again so that the individual is not entitled to be paid family tax benefit. Beneficial variations only to have limited effect (2) If: (a) the Secretary does not become aware of the occurrence of the event until after the end of the income year (the second income year) following the one in which the event occurred; and (b) the claimant did not notify the Secretary of the occurrence of the event before the end of the second income year; and (c) apart from this subsection, the Secretary would be required by subsection (1) to vary the determination so as to increase the claimant’s entitlement to family tax benefit under the determination; the Secretary must vary the determination so that it has that effect only from the beginning of the income year that precedes the one in which the Secretary becomes aware of the event. Sections 27, 27A, 28, 28A, 28B, 30, 30A and 30B and subsection 29(2) variations prevail (3) If: (a) when the variation under this section takes place, a variation of the determination is in force under section 27, 27A, 28, 28A, 28B, 30, 30A or 30B or subsection 29(2); and (b) the variation under that section or subsection has effect for any period when the variation under this section would have the effect that the claimant is entitled to be paid family tax benefit; the variation under that section or subsection prevails over the variation under this section.