Joe Hockey’s great big new red tape nightmare
- If someone wants to sell taxable real estate worth $2 million or more, the purchaser MUST withhold 10% of the gross sale price at settlement UNLESS a clearance certificate issued by the ATO has issued saying to the effect that the seller is not a foreigner. Imagine you don’t have the certificate, but you have sold a property worth $2.1 million, and have borrowings of $1.8 million. $210,000 has to be retained from the sale- and then sent to the ATO if no clearance has been obtained. The borrower in effect gets nothing until it has cleared through the bowels of the ATO, and in effect has to pay for the costs of the agent’s commission.
- Yes, you got it. This means a new form for those sales. This also means that a government body that does not get involved actively in sales (unlike land titles, or for that matter, the banks) now is a player. Any buyer or seller over the threshold has to make sure that they have that little bit of paper. Imagine not having it. It might cause settlements fall over, in part because buyers can’t comply with their borrowing requirements, or because the ATO isn’t efficient and can’t get the paper turned around quick enough.
- To give an example, a client of mine sought a private tax ruling from the ATO. He was told 30 days to get it issued. The ATO took 6 months! Let’s hope they can produce these documents in quicker time, or they will be crashing contracts all over the place. If in doubt, read this statement by the ATO:
“If the vendor is automatically assessed as an Australianresident, a clearance certificate will be issued electronicallywithin days of the application being submitted.If there are data irregularities or exceptions, some manualprocessing may be required and the clearance certificatewill be provided within 14–28 days.Higher risk and unusual cases may require greater manualintervention and could take longer to process.”
- It gets worse. The law does not just apply to sales over $2 million. It applies to ALL disposal of an entity (like a company or a trust) where the majority of the assets are taxable real estate ( i.e. other than the family home under $2 million, presumably). No value is set. Everything is covered by this: family law property settlements, restructure of deed arrangements (say even possibly with private superannuation funds), deceased estates, mining leases, options for any of that property and on and on it goes. In ALL of those cases, IRRESPECTIVE OF THE VALUE OF THE LAND, it will apply. Just imagine that Bob and Bill are two brothers who have had a bad falling out. One of the things they agree to as part of a deal in the Supreme Court is that Bob will transfer his share in XYZ Pty Ltd to Bill. A value is given of $1. XYZ Pty Ltd is in effect valueless. It owns $400,000 worth of land in the desert near Boulia. XYZ Pty Ltd is mortgaged up to the hilt: it owes the bank $500,000. Before Bob can comply with the Supreme Court order to transfer his $1 share to Bill, Bill must get ATO clearance, which In an indirect case, he can do so by declaration. Otherwise, Bob must withhold, presumably, $40,000 (which of course he doesn’t have) to comply with the legislation.
Some of the obvious issues for disposers (and corresponding for buyers) are:
And the best part of this mess? It starts on 1 July. So what, you say, that’s the beginning of the new financial year, an obvious time for it to start. It is also the day before the Federal election. The Government is in caretaker mode. The ATO CANNOT sort out major issues as to how this is to be applied until after the election, because it has no one from above to make decisions for it, after these changes have commenced. Lucky us. Thank you, Joe.