As previously set out in ‘Expats have until 30 June 2020 to sell main residence’, legislation assented to on 12 December 2019 radically amended the availability of the main residence exemption on capital gains tax (CGT) for foreign residents for tax purposes.

Now let’s take a look at how the new legislation will affect deceased estates.

Under the former legislation, any capital gain arising from the transfer of a property under the Will of an Australian resident for tax purposes was disregarded except where it passed to a foreign resident or tax advantaged entity. Where it passed to a foreign resident, the main residence exemption was not available and any CGT was accounted for in the deceased’s “date of death” tax return.

Where a foreign resident beneficiary inherited property under the Will of another foreign resident:

  1. Who was a foreign resident for 6 years of less, then the deceased’s entitlement to the exemption was rolled over to the foreign resident beneficiary.
  2. Who was a foreign resident for more than 6 years, then the foreign resident beneficiary was not entitled to the exemption.

Under the new legislation:

  1. Where a foreign resident inherits under Australian resident’s Will - From the deceased’s date of the death, the foreign resident beneficiary will be unable to accrue any entitlement to the exemption themselves. This means, when the foreign resident beneficiary comes to dispose of the property after the date of death, they may receive a partial concession on CGT based on the deceased’s cost base up until the date of the deceased’s death but thereafter, no concession or exemption can apply from the deceased’s date of death onwards.
  2. Where a foreign resident inherits under another foreign resident’s Will – The beneficiary (be them a resident or non resident) and the trustee of the estate will not be entitled to the main residence exemption accrued by the deceased (if any). However, from the deceased’s date of death, residents will continue to be able to accrue an entitlement to a concession but foreign residents will be unable to accrue any entitlement to a concession.

Any beneficiary who is not entitled to the exemption, will be taxed on the full CGT amount. Remember here – in determining CGT for a property purchased by the deceased after 20 September 1985, the cost base is calculated from the date of purchase. There is a significant increase in value of properties between say, 1986 and 2026.

What could this mean?

This may result in:

  1. An increase in foreign resident beneficiaries directing the trustee of the deceased estate to sell the property and take the net proceeds of sale in substitution for the gift of property.
  2. An increase in accounting fees in submitting the deceased’s tax return.
  3. No doubt, an increase in tax.