Legislation has been introduced into Parliament to implement the goods and services tax (GST) withholding regime for property transactions (Bill) announced in the 2017/2018 Budget. If passed, from 1 July 2018, purchasers of new residential premises or a new subdivision of potential residential land will be required to withhold and remit a portion of the contract price for the supply directly to the Australian Taxation Office (ATO) or by way of payment of a bank cheque as part of the settlement process. The Bill includes a number of changes following the consultation process on the exposure draft legislation released in 2017 (see our previous article here).

Background

Currently, if the supply of new residential premises or a new subdivision of potential residential land is a taxable supply, the vendor is liable to remit GST to the ATO in their next business activity statement (BAS).

The ATO has observed that some property developers are avoiding remitting the GST on their sales. One of the main forms of non-compliance includes developers selling properties for a purchase price that reflects their GST obligations but dissolving their business before their next BAS lodgement is due to avoid remitting the GST to the ATO. The ATO has identified 3,371 individuals actively engaged in such conduct in the past 5 years.

The purpose of the proposed withholding regime is to counteract GST evasion, however as explained below, its application is broader, impacting both compliant property developers and mum and dad purchasers.

Affected taxable supplies

The withholding regime will apply if an entity makes a taxable supply of:

  • new residential premises; or
  • potential residential land that is included in a property subdivision plan,

by way of sale or long term lease.

The breadth of the application of the withholding regime has been somewhat minimised following the consultation process. The withholding regime will no longer apply to a taxable supply of:

  • new residential premises that are created through a substantial renovation or that are commercial residential premises; or
  • potential residential land that contains any building that is in use for a commercial purpose or supplied in a business to business transaction in circumstances where the recipient of the taxable supply is registered for GST and acquires the potential residential land for a creditable purpose.

As the withholding regime does not apply to a supply that is not a taxable supply, it also does not apply to a supply by an entity that is not registered or required to be registered for GST, between members of a GST group, or made by the operator of a GST joint venture to a participant in the joint venture.

Amount to withhold

If the withholding regime applies, the purchaser will normally be required to make a payment of 1/11th of the contract price for the supply to the ATO, or if there is no contract price, the GST exclusive market value.

The contract price is the price set for the supply in the contract, not taking into account any potential adjustments. The use of the contract price is a variation from the exposure draft legislation which determined an amount based on a percentage of the amount of money paid for the supply. It provides entities with more certainty about the amount that needs to be withheld.

Further, if the margin scheme applies, only 7 percent of the contract price for the supply must be withheld. The lower withholding rate when the margin scheme applies is a welcome amendment from the exposure draft legislation to mitigate the cash flow implications of the regime. However, this has been offset by the removal of the refund mechanism originally proposed for transactions under the margin scheme.

When to withhold

The payment to the ATO will need to be made on or before the day on which consideration is first provided, other than as a deposit. This will usually be at the time of settlement. However, if the consideration is to be paid by instalments, the payment to the ATO of the full withholding amount will need to be made prior to or at the time of payment of the first instalment (e.g. under a terms contract).

The purchaser can withhold and remit payment by way of bank cheque to the vendor at settlement or, if the parties are using the PEXA platform as agent for the purchaser, by way of payment to PEXA.

Vendor notification obligations

A vendor that makes a taxable supply of residential premises (whether or not new) or potential residential land will need to provide a written notice to the purchaser before making the supply. The notice must specify whether the purchaser is required to withhold payment, and if so, the notice must also include other specified matters such as the amount that the purchaser will be required to pay to the Commissioner. There may be issues for a purchaser if it pays the first consideration prior to the supply i.e. before the time that the vendor provides the notification.

The vendor is exempt from the notification obligations if the purchaser is registered for GST and acquires the land for a creditable purpose or if the supply is of commercial residential premises.

Penalties

Failure to comply with the notification obligation will be a strict liability offence. However, a vendor will not be subject to the penalty if they can show that they have made an honest mistake of fact.

Failure to make a withholding payment will give rise to an administrative penalty under the existing provisions for which the purchaser may be liable to a penalty equal to the withholding amount. However, a purchaser will not be subject to the penalty if they can show that they relied upon a notification from the vendor and it was not unreasonable to do so or if the purchaser provided the supplier with a bank cheque for the GST withholding that is payable to the ATO

Vendor credits and refunds

A vendor that makes a taxable supply to which the GST withholding regime applies will still report the amount of GST payable in its BAS and will be entitled to a credit for the amount paid by the purchaser to the ATO. Refunds separate to the usual BAS process will only be available if an amount is withheld in error and subject to certain timing restrictions.

Start date and transitional provisions

The new withholding obligation will apply to supplies for which any of the consideration is first provided on or after 1 July 2018. However under the transitional provisions, the withholding regime will not apply to supplies made in accordance with a contract entered into before 1 July 2018, except where the consideration for the supply is first provided after 1 July 2020. There are also special rules to ameliorate the impact of the withholding on property development agreements entered into prior to 1 July 2018.

What this means for you

Although the Bill is targeted at counteracting GST evasion, particularly through phoenix arrangements, the withholding regime will have broad reaching implications for vendors and purchasers in the property development industry. To avoid penalties for non-compliance, vendors and purchasers will need to be aware of and comply with their new obligations.

To comply with the new obligations, new administrative processes will need to be implemented and some existing administrative processes changed. This will include ensuring that vendors provide the relevant notification to purchasers within the required time, and that purchasers withhold and remit the relevant amounts to the ATO.

Precedent contracts for sale will need to be amended to recognise the purchaser’s GST withholding obligations. Existing contracts may also need to be amended if they involve a supply to which the withholding regime will apply and consideration (other than a deposit) will not be provided before 1 July 2020. Administrative processes for settlement, including precedent settlement statements, will also need to be amended to reflect the GST withholding.

This increased complexity and red tape may increase transaction costs for purchasers of new residential premises or new subdivisions of potential residential land. It should be noted that the increased compliance obligations imposed by the proposed GST withholding regime are additional to the obligations under the foreign resident capital gains tax (CGT) withholding regime (see our previous article here).1

From a vendor perspective, the withholding regime will have cashflow implications as vendors will no longer have the benefit of retaining GST between the date of collection from purchasers and the date of lodgement of their BAS. If the margin scheme applies to a supply and the GST payable is less than 7% of the contract price for the supply, the vendor will have further cashflow implications as the vendor will only receive a credit for the excess amount withheld and remitted when their BAS is lodged. Vendors will also suffer cashflow implications where purchasers withhold in error. While vendors may be eligible to apply for a refund, the application for a refund imposes an additional administrative task on vendors.

Despite the Bill still being before Parliament, it would be prudent for vendors, purchasers and advisors in the property development industry to be mindful of the impending consequences of the proposed GST withholding regime.