Foreign persons acquiring residential property in NSW on or after 21 June 2016 are liable to pay a 4% surcharge duty in addition to the usual duty payable on the purchase. A land tax surcharge of 0.75% will also apply to foreign persons owning residential property in NSW from 31 December 2016 for the 2017 and subsequent land tax years. Foreign persons will not be provided with a tax-free threshold (currently $482,000) for the land tax surcharge nor an exemption for the principal place of residence. This brings New South Wales into line with the other States on the eastern seaboard.

The Duties Act 1997 (NSW) and the Land Tax Management Act 1956 (NSW) adopt the same definitions for ‘Foreign Person’, ‘Residential land’.

Foreign Person

‘Foreign Person’ is defined by reference to the definition under the Foreign Acquisitions and Takeovers Act 1975 (Cth) (Act),as follows:

  • an individual not ordinarily resident in Australia (except for Australian citizens or a New Zealand citizen holding a special category visa under the Migration Act 1958); or
  • a corporation or trustee of a trust in which an individual not ordinarily resident in Australia, a foreign corporation or a foreign government holds a substantial interest (20%); or
  • a corporation or trustee of a trust in which two or more persons, each of whom is an individual not ordinarily resident in Australia, a foreign corporation or a foreign government, hold an aggregate substantial interest (40%); or
  • a foreign government; or
  • any other person, or any other person that meets the conditions, prescribed by the Foreign Acquisition and Takeovers Regulation (Regs). Specifically, clauses 18, 46 and 47 of the Regs.

An Australian citizen is taken to always be a resident in Australia. However, a non-Australian citizen is ‘ordinarily resident’ in Australia at a particular time where:

  • the individual has actually been in Australia during 200 or more days in the last 12 months; and
  • is not subject (or was subject to last departure) to any legal limitation as to time for continued presence in Australia.

Under the Act, a beneficiary of a discretionary trust is taken to be entitled to 100% of the income and the capital of the trust. Accordingly, any potential beneficiary of a trust not ‘ordinarily resident’ in Australia will cause the trustee of the trust to be a foreign person under the Act. Therefore the trustee will be liable for surcharges.

Residential-related property

The definition for ‘residential-related property’ broadly includes:

  • residential land in New South Wales;
  • an option to purchase residential land in New South Wales (including nominations or assignment of the option).

Residential land

‘Residential land’ is defined to broadly include any of the following and does not include any land used for primary production:

  • a parcel of land on which there is one or more dwellings or partially completed dwellings;
  • a strata lot, utility lot or a ‘land use entitlement’ that is, or relates to, a separate dwelling; and
  • a parcel of vacant land that is zonedfor residential purposes or principally for residential purposes.

Accordingly, the types of properties that are subject to the duty surcharge in NSW include:

  • established homes and residential apartments;
  • a parcel of land on which there is a home or a residential apartment block under construction; and
  • vacant land (including property development site) that is zoned or designated for residential purposes.

It does not include land intended to be used for residential purposes which is not otherwise residential land such as commercial office building to be converted into residential apartments.

Landholder provisions

The surcharge purchaser duty will only apply to a foreign person who is either the transferee under a dutiable transaction or is the acquirer in a ‘relevant acquisition’ in relation to a private landholder. An acquisition by a foreign person of an interest in a landholder which has an interest in residential land will be subject to the surcharge where the acquisition is otherwise dutiable.

Example 1: Duty Surcharge – sole overseas purchaser

An overseas individual purchaser proposes to buy a $900,000 apartment in the city.
The duty payable is: $35,990
Duty surcharge is 4% of $900,000: $36,000
Total duty payable is: $71,990
The duty is payable within 3 months of execution of the contract or transfer to the foreign person.

Example 2: Land Tax Surcharge – overseas developer

An overseas developer owns a development site as at midnight on 31 December 2016 with a taxable value of $18,000,000. The usual land tax is payable with an additional land tax surcharge of 0.75%.

Example 3: Foreign owner acquires 50% shares in a landholder company with one residential land valued at $10,000,000 (assume no concession or exemption)

Stamp duty payable on $5,000,000 of: $150,490
Premium Duty (residential land valued over $3 million) of: $140,000
Duty Surcharge of: $200,000
Total duty payable is: $490,490

Aggregated value of land of $5,000,000, land tax payable of $80,600. Land Tax Surcharge payable on half of $5,000,000 at 0.75%.

Example 4: Trust with wide class of beneficiaries including foreign person or charities

Land tax surcharge of additional 0.75% is payable on aggregate taxable value of land relating to residential properties even if no distribution is made to foreign person.

What does this mean for you and your clients?

Duty Surcharge

  • Carefully consider whether the purchasers of land in NSW are ‘foreign’ for the purposes of the surcharges in relation to the land or interest being acquired.
  • Review trust deeds prior to acquisition of residential property to consider amendment to exclude “foreign persons”
  • Ensure the NSW OSR’s purchaser’s declaration is completed correctly as the information will be used to assess duty surcharge, land tax surcharge and also used by the Australian Taxation Office for CGT withholding.
  • Consider the consequences of duty surcharge on the purchase price and the transaction structure more generally (for example, nominations or assignments of options to purchase residential land).

Land Tax Surcharge

  • The land tax surcharge will apply to taxable value of residential land owned by a foreign person at midnight on 31 December in any year commencing on 31 December 2016 including trusts with beneficiaries that may be ordinarily outside of Australia.
  • Review trusts that own residential land prior to 31 December to consider amendment to deed to exclude Foreign persons.
  • Foreign persons will not be eligible for the tax-free land tax threshold, which for the 2016 land tax year is $482,000.
  • Foreign persons who own a principal place of residence in NSW will be subject to land tax of 0.75% on the taxable value of their land.
  • The land tax surcharge applies to foreign persons even if the property is exempt from general land tax except where the property is predominantly used for primary production.
  • Foreign persons must carefully consider the long-term holding costs for residential land in NSW taking into account the land tax surcharge.
  • Land tax surcharge will be imposed to the extent the foreign person’s interest in land is used for residential purpose.

Other state taxes - opportunities

  • There are opportunities for clients to consider restructures, asset protection and estate planning strategies together with Federal tax Capital Gains Tax rollovers following the abolition on 1 July 2016 in NSW of the following heads of duty:
    • mortgage duty;
    • duty on share and unit transfers; and
    • duty on the transfer of business assets (including goodwill, intellectual property, statutory licences and gaming machine entitlements).
  • Share transfer duty is no longer payable, however, landholder duty may be payable on any relevant transfer. We can assist with stamp duty applications for exemptions under corporate reconstruction and corporate consolidation for landholders.