Treasury has released an Exposure Draft of legislation that will impose a liability on buyers to remit 10% of the purchase price direct to the ATO where they are buying certain kinds of ‘land and resource-related’ assets from non-residents.
This is a key exposure for buyers, may catch some unprepared sellers unaware and will likely lead to changes in the way sales transactions are handled.
Background
During the May 2013 budget, the Government announced that it planned to introduce a new tax liability: it was stated that ‘from 1 July 2016, a 10 per cent non-final withholding tax [to] apply to the disposal by foreign residents of certain taxable Australian property’. During November 2013 the Government announced that it would proceed with the tax. The purpose of the regime is to assist in the collection of foreign residents’ capital gains tax liabilities. The Exposure Draft of the legislation was released in early July with submission closing on August 7 2015.
What assets are categorised as ‘certain property’?
- Land in Australia and other kinds of real property such as leases over land in Australia or contracts for the sale of land in Australia,
- Mining, quarrying or prospecting rights relating to minerals or oil in Australia,
- Shares or units representing more than 10% of an entity that is ‘land-rich’ – that is, the market value of land in Australia is more than 50% of the market value of all the entity’s assets, and
- A right or option to acquire any of the previous items.
There are exclusions including residential property that is valued at less than $2.5 million.
Property buyers need to be careful
Property buyers need to be careful because the purchaser is required to know if the seller is a foreign resident – this is not necessarily easy.
A solution is to request the seller to present a ‘Payee Declaration of Residency’- in other words, the seller can get approval from the ATO that they are an Australian resident.
Determining a seller’s residential status is particularly tricky when purchasing residential property that is worth more than $2.5 million.
Residential status conditions
The buyer is obligated to pay the 10% tax if any of the following conditions are met:
1 The buyer knows that the seller is a foreign resident
2 The buyer reasonably believes that the seller is a foreign resident
3 The seller has given to the buyer an address outside Australia
4 The seller has authorised the buyer to pay an amount to a place outside Australia.
Thankfully the buyer’s knowledge of the seller’s residential status depends on their knowledge or suspicions. This means buyers do not have to correctly identify a seller’s true residential status. This status can be very hard to identify correctly.
This is clearly a very tricky new ruling, so if your proposal succeeds – both purchasers and sellers should seek specialist tax advice. if you have any questions about any of the above, and you’d like to speak with an experienced and knowledgeable accountant – please get in touch with the team at Fortis Accounting Partners. You can reach us on 02 9267 0108, or via info@exemplary-financial.flywheelsites.com.
