<rss version="2.0" xmlns:content="http://purl.org/rss/1.0/modules/content/" xmlns:dc="http://purl.org/dc/elements/1.1/"><channel><title>evoralegal</title><description>evoralegal</description><link>https://www.evoralegal.com.au/news</link><item><title>Australian tax changes affecting non-residents – increasing the cost of buying, holding and selling property in Australia for foreign residents</title><description><![CDATA[Addressing housing affordability is a stated priority for the current Australian Government. However, enabling home and property ownership for Australian residents has resulted in, among other things, increased taxes and costs for foreign resident property owners. Consequently, Australia has implemented several tax changes that affect foreign residents particularly those investing in or owning residential property in Australia. The Federal Budget handed down on 8 May 2018 adds to the mix a<img src="http://static.wixstatic.com/media/14d274_fdeabcce01674859af4d3cd08894c653%7Emv2.jpg"/>]]></description><dc:creator>Jennifer Yeo</dc:creator><link>https://www.evoralegal.com.au/single-post/2018/05/10/Australian-tax-changes-affecting-non-residents-property</link><guid>https://www.evoralegal.com.au/single-post/2018/05/10/Australian-tax-changes-affecting-non-residents-property</guid><pubDate>Thu, 10 May 2018 00:28:30 +0000</pubDate><content:encoded><![CDATA[<div><img src="http://static.wixstatic.com/media/14d274_fdeabcce01674859af4d3cd08894c653~mv2.jpg"/><div>Addressing housing affordability is a stated priority for the current Australian Government. However, enabling home and property ownership for Australian residents has resulted in, among other things, increased taxes and costs for foreign resident property owners. </div><div>Consequently, Australia has implemented several tax changes that affect foreign residents particularly those investing in or owning residential property in Australia. The Federal Budget handed down on 8 May 2018 adds to the mix a proposed change of law to deny tax deductions for holders of vacant land. </div><div>These changes affect foreign resident individuals and entities, such as companies and trusts, that are substantially controlled by foreign residents. </div><iframe src="//static.usrfiles.com/html/062335_16c20618a8f296430e20d5870d2f5eb6.html"/><div>Snapshot of changes</div><div>1. 2018-2019 Federal Budget announces denial of tax deductions for holders of vacant land</div><div>The Federal Budget handed down on 8 May 2018 proposed that from 1 July 2019, tax deductions will not be allowed for expenses associated with holding vacant land (such as interest/borrowing costs, council rates) and these will also not be able to be carried forward to later years, although they may be included in “cost base” for CGT purposes when the asset is sold. There will be exceptions for land held for commercial development. At this stage, this is a proposal which will still need to be detailed in draft legislation and passed by both Houses of Parliament before it becomes law. </div><div>2. Stamp duty surcharge</div><div>Stamp duty is a State-based tax which is levied on transactions involving land or interests in land. The rates of tax vary from State to State and can be up to 7%.</div><div>Most States have now implemented an additional surcharge duty on purchases of residential property made by foreign residents, which effectively imposes an additional 3% to 8% duty.</div><div>3. Land tax surcharge</div><div>Land tax is a State-based tax, levied annually on owners. Foreign resident landowners will be subject to a land tax surcharge of up to 2%. This is applied on top of 1.6% to 2% ordinary land tax.</div><div>In addition, Victoria and Queensland have implemented an “absentee land tax” which applies to individuals who own land (not only residential property) at the rate of 1.5%.</div><div>4. Removal of CGT exemption on sale of main residence – proposed to apply to sales that occurred after 9 May 2017</div><div>Foreign residents previously enjoyed a full exemption from CGT on the sale of their main residence in Australia. Legislation currently before the Senate will, when passed, impose CGT on foreign residents who sell their Australian main residence. There are some transitional provisions for foreign residents who already own property as at 9 May 2017 whereby those individuals may still be entitled to the exemption.</div><div>These rules are also extended to deceased estates and therefore will affect non-resident decedents and non-resident beneficiaries.</div><div>This measure, together with the removal of the 50% CGT discount for non-residents several years ago (for assets purchased after 8 May 2012), potentially means CGT payable by non-residents on the sale of their main residence without further reduction.</div><div>5. Associates are included in real property ownership tests for CGT purposes</div><div>The same proposed legislation that proposes to remove the CGT exemption also proposes to implement an “associate inclusive” test to disposals by foreign residents of their indirect interests in real property. That is, the interests of the foreign resident and their associates are taken into account to determine whether that foreign resident has an interest that is “taxable Australian property” and is therefore subject to CGT.</div><div>6. Non-residents selling property – all buyers (regardless of residency) have withholding tax obligations</div><div>Buyers of property (or interests in property) from a non-resident vendor are required to withhold tax at the rate of 12.5% (of the purchase price, generally) and pay this to the Australian Taxation Office. Non-resident vendors should consider whether they should apply for a rate variation.</div><iframe src="//static.usrfiles.com/html/062335_6f960abf386c9463c5bcbdc00fbe7906.html"/><div>Action items for foreign residents</div><div><div>Work out if you are a “foreign resident” in the relevant State where you (or your controlled entities) own property and work out if you are a non-resident for CGT purposes – note that these two tests are slightly different</div><div>Foreign residents should check their land tax compliance and carefully consider stamp duty implications of purchasing property in Australia</div><div>Foreign residents should explore any planning opportunities and understand how the changes to the CGT regime for non-residents will affect them</div><div>Foreign residents who own property should ensure that their estate plans have considered the tax implications for their estate and the beneficiaries who will inherit their property - often, it is best to have a separate will dealing with Australian assets </div></div><div>We advise and help foreign residents to understand how these changes may affect them, their property holdings and their tax and estate plans. </div><div>Information contained herein is general in nature and should not be treated as advice. Australian laws are complex and will depend on your personal circumstances. </div><div>Evora Legal are Tax and Private Client Lawyers based in Sydney, Australia. We provide legal advice to foreign resident clients with personal or business interests in Australia. We would be delighted to hear from you. Please contact us to discuss how we can help you.</div></div>]]></content:encoded></item><item><title>NSW State Taxes Update</title><description><![CDATA[Trusts that own or purchase residential land in NSW – additional duty and land tax impostsAll discretionary trusts that own or purchase land in NSW should consider whether or not the new Surcharge Purchaser Duty or the Land Tax Surcharge applies to the trustee. Changes may be required to trust deeds to ensure that these surcharges do not apply. Background – what is surcharge purchaser duty and the land tax surcharge?Surcharge purchaser duty is imposed at the rate of 4% on the purchase of<img src="http://static.wixstatic.com/media/14d274_469448fb90734d34880e10581e4202ae%7Emv2.jpg/v1/fill/w_669%2Ch_376/14d274_469448fb90734d34880e10581e4202ae%7Emv2.jpg"/>]]></description><dc:creator>Jennifer Yeo</dc:creator><link>https://www.evoralegal.com.au/single-post/2017/03/20/NSW-State-Taxes-Update</link><guid>https://www.evoralegal.com.au/single-post/2017/03/20/NSW-State-Taxes-Update</guid><pubDate>Mon, 20 Mar 2017 09:30:37 +0000</pubDate><content:encoded><![CDATA[<div><div>Trusts that own or purchase residential land in NSW – additional duty and land tax imposts</div><img src="http://static.wixstatic.com/media/14d274_469448fb90734d34880e10581e4202ae~mv2.jpg"/><div>All discretionary trusts that own or purchase land in NSW should consider whether or not the new Surcharge Purchaser Duty or the Land Tax Surcharge applies to the trustee. Changes may be required to trust deeds to ensure that these surcharges do not apply. </div><div>Background – what is surcharge purchaser duty and the land tax surcharge?</div><div>Surcharge purchaser duty is imposed at the rate of 4% on the purchase of residential real estate in NSW by a “foreign person” on or after 21 June 2016.</div><div>Land tax surcharge of 0.75% is imposed on foreign persons who own residential land in NSW starting from the year ending 31 December 2016 (2017 land tax year). No tax-free threshold or principal place of residence exemption applies if the surcharge applies. </div><div>Background – who is affected? </div><div>A surcharge applies to all foreign persons who acquire (surcharge duty) or own (land tax surcharge) property in NSW.</div><div>A foreign person means:</div><div>an individual not ordinarily resident in Australia; ora corporation in which an individual not ordinarily resident in Australia, a foreign corporation or a foreign government holds a substantial interest; ora corporation in which 2 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; orthe trustee of a trust in which an individual not ordinarily resident in Australia, a foreign corporation or a foreign government holds a substantial interest; or the trustee of a trust in which 2 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; ora foreign government; or<div>a general partner of a limited partnership where:<div>an individual not ordinarily resident in Australia, a foreign corporation or a foreign government holds at least 20% in the limited partnership; ortwo or more persons each of whom is an individual not ordinarily resident in Australia, a foreign corporation or a foreign government, hold an aggregate interest of at least 40% in the limited partnership.</div></div></div><div>How are trusts affected?</div><div>Relevantly, for trusts that own residential land, if a foreign person is a potential beneficiary of the trust, this will mean the trust is itself a “foreign person”. This is due to the fact that a discretionary beneficiary is deemed to have the maximum percentage interest (i.e. 100%) in the trust. This is a “substantial interest” which means that the Trustee will itself be a foreign person and liable for the surcharges. </div><div>Beneficiary classes in most discretionary trust deeds are broadly cast and do not ordinarily differentiate based on the residency of beneficiaries. A simple example is a discretionary family trust that has principal beneficiaries being mum, dad and children, all of whom reside in Australia and are not foreign persons. However, all other relatives of Mum and Dad reside overseas. These relatives fall within the secondary class of discretionary beneficiaries of the trust. In this case, the trust itself will be a foreign person and subject to both the surcharge purchaser duty on the acquisition of NSW land and the land tax surcharge.</div><div>To prevent the surcharges applying to trustees in this circumstance, trust deeds will need to be amended to exclude foreign persons from benefiting from the trust. The Office of State Revenue has issued a Revenue Ruling confirming that the Commissioner will exercise his discretion to exempt a trustee of a trust from the surcharges provided he is satisfied that the trustee is not involved in a scheme or arrangement for the evasion or avoidance of these taxes. The trustee then has 6 months to amend the deed in accordance with the exemption.</div><div>As for how to achieve the exclusion of foreign persons, the mechanism by which this is done should be carefully considered and will vary for each trust. There are several ways for this to be achieved and each will have different legal consequences (for example, by the trustee exercising a power of exclusion, variation of the deed or self-exclusion by beneficiary). Each trust deed and circumstances will be different. However, in most cases, to ensure maximum flexibility for the trust, so that the trustee retains the ability to reappoint foreign persons as beneficiaries of the trust in the future, such a change preferably should not be expressed to be irrevocable. </div><div>What else?</div><div>Some of the other concerns with the new surcharges:</div><div>Exemptions which may otherwise apply to residential land (such as the primary place of residence exemption) do not apply when calculating the taxpayer’s surcharge liability; andThe meaning of “residential land” is unclear – industry consultation is currently progressing with a view to the OSR issuing a Revenue Ruling in relation to the definition.</div><div>If you would like to discuss your specific requirements relating to your or your clients’ trusts, please <a href="mailto:jennifer@evoralegal.com.au?subject=Article on Trust and additional duties/taxes">contact me</a>.</div><div>Changes to landholder duty provisions</div><div>Landholder duty is ad valorem duty charged on the acquisition of an interest in a landholder. That is, instead of nil duty on the acquisition of a share in a company which holds land, duty is imposed as if the purchaser is buying an interest in the land.</div><div>A bill which, among other things, extends the landholder duty provisions, passed the Legislative Assembly (State Revenue Legislation Amendment Bill 2017) on 8 March 2017 and moved to the Legislative Council. Some of these changes include extending certain anti-avoidance measures, the point in time at which an interest is acquired, including landholdings that are “agreed to be transferred” and those subject to put and call options. This extends the application of these already complex and far-reaching provisions. Care should continue to be taken whenever transferring or dealing with interests in a landholding entity.</div><div>If you would like to discuss any issues relating to State taxes, please <a href="mailto:jennifer@evoralegal.com.au?subject=Article on Trust and additional duties/taxes">contact me</a>.</div></div>]]></content:encoded></item><item><title>EVORA Legal Launches</title><description><![CDATA[After practising for 12 years in a number of legal positions, ranging from top tier, international firms to boutique firms, I am proud to announce the launch of my own brand for legal services: EVORA Legal.EVORA is a play on the word: evolution. Legal service providers must, in this day and age, constantly evolve and adapt to the changing demands of clients. The ways of traditional law firms no longer work. We are excited to seize this new opportunity to provide our clients with a better way of<img src="http://static.wixstatic.com/media/14d274_997c8700226247ec84346f44e633369a%7Emv2.png"/>]]></description><dc:creator>Jennifer Yeo</dc:creator><link>https://www.evoralegal.com.au/single-post/2016/11/21/EVORA-Legal-Launches</link><guid>https://www.evoralegal.com.au/single-post/2016/11/21/EVORA-Legal-Launches</guid><pubDate>Sun, 20 Nov 2016 21:51:57 +0000</pubDate><content:encoded><![CDATA[<div><img src="http://static.wixstatic.com/media/14d274_997c8700226247ec84346f44e633369a~mv2.png"/><div>After practising for 12 years in a number of legal positions, ranging from top tier, international firms to boutique firms, I am proud to announce the launch of my own brand for legal services: EVORA Legal.</div><div>EVORA is a play on the word: evolution. Legal service providers must, in this day and age, constantly evolve and adapt to the changing demands of clients. The ways of traditional law firms no longer work. We are excited to seize this new opportunity to provide our clients with a better way of doing business that is tailored to each client. </div><div>What can you expect of EVORA Legal? Technical tax advice which is always practical, timely and commercial, strategic legal advice for both businesses and individuals, tailored billing arrangements (so you pay for what you need and nothing you don't) and connections to an experienced professional international network to deal with any business or legal need that our clients have. </div><div>Feel free to contact us to discuss your needs or just to catch up for a coffee.</div></div>]]></content:encoded></item></channel></rss>