104JMeanings of “foreign person” and “foreign trustee”

#### 104J Meanings of “foreign person” and “foreign trustee” 104J Meanings of “foreign person” and “foreign trustee” > > (1) In this Chapter— > > > > foreign person means a person who is a foreign person within the meaning of the [Foreign Acquisitions and Takeovers Act 1975](http://www.legislation.gov.au/) of the Commonwealth, as modified by this section. > > > > foreign trustee means a person who is a foreign person because of the person’s capacity as the trustee of a trust. > > > (2) The definition of foreign person in the [Foreign Acquisitions and Takeovers Act 1975](http://www.legislation.gov.au/) of the Commonwealth is modified as follows— > > > > > (a) an Australian citizen is taken to be ordinarily resident in Australia, whether or not the person is ordinarily resident in Australia under that definition, > > > > > (b) a New Zealand citizen who holds a special category visa, within the meaning of section 32 of the [Migration Act 1958](http://www.legislation.gov.au/) of the Commonwealth, at any particular time is taken at that time to be an individual whose continued presence in Australia is not subject to any limitation as to time imposed by law. > > > > Note. > > > > Section 5 of the [Foreign Acquisitions and Takeovers Act 1975](http://www.legislation.gov.au/) of the Commonwealth provides that an individual who is not an Australian citizen is ordinarily resident in Australia at a particular time (and is therefore not a foreign person) if and only if— > > > > > (a) the individual has actually been in Australia during 200 or more days in the period of 12 months immediately preceding that time, and > > > > > (b) at that time— > > > > > > > (i) the individual is in Australia and the individual’s continued presence in Australia is not subject to any limitation as to time imposed by law, or > > > > > > > (ii) the individual is not in Australia but, immediately before the individual’s most recent departure from Australia, the individual’s continued presence in Australia was not subject to any limitation as to time imposed by law. > > > (3) For the purposes of charging surcharge purchaser duty on a surcharge duty transaction, a person is taken to be a foreign person if the person is a foreign person when a liability for duty charged by Chapter 2 on the transaction arises (or would arise but for section 53A or a concession or exemption from duty under that Chapter). > > > > Note. > > > > See section 12. > > > (4) When assessing whether a sub-fund of a CCIV is a foreign person for the purposes of this chapter, the [Foreign Acquisitions and Takeovers Act 1975](http://www.legislation.gov.au/) of the Commonwealth must be read subject to section 5A. > > > (5) To avoid doubt, subsection (4) also applies for the purposes of the definition of foreign person in the [Land Tax Act 1956](/view/html/inforce/current/act-1956-027). > > **s 104J:** Ins 2016 No 32, Sch 1 \[14\]. Am 2024 No 90, Sch 1\[7\].