Joe Hockey’s great big new red tape nightmare

Thursday, June 09, 2016

Thank you to Julia Gillard, Joe Hockey, Tony Abbott and the Daily Telegraph for the latest round of idiocy, which will cause pain to pretty well everyone, add a layer of red tape that is not there now, and give no real benefits.

The problem?

Remember- foreign investors, mainly Chinese, were buying properties, including Sydney harbourside mansions and not being honest about who was buying them.

The outcome- a media campaign whipped up by Sydney’s Daily Telegraph- which then forced Joe Hockey to take action.

His first step was to require certain properties to be sold. One might think the problem was solved. Not so, apparently.

His second step was to get legislation passed in February this year, effective 1 July 2016 to impose a withholding tax in effect on MANY sellers and disposors of property. It was apparently aimed at the big end of town, i.e., those foreign investors who couldn’t tell the truth, apparently, and had bought real estate worth $2 million or more.

But in the blunderbuss approach taken, the result quite simply is a mess. The Abbott government has imposed a great big new tax (in effect) on many sellers of property. This is why:

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 Australian

resident, a clearance certificate will be issued electronically

within days of the application being submitted.

If there are data irregularities or exceptions, some manual

processing may be required and the clearance certificate

will be provided within 14–28 days.

Higher risk and unusual cases may require greater manual

intervention 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:

1. whether a clearance certificate, variation or declaration is required;

2. the necessary timing for applying for and obtaining that certificate

3. how and when to calculate the market value for the asset or the component of the asset that is taxable Australian property or interests in taxable Australian property;

4. any GST component of the transfer;

5. risks to the sellers when the 10% is not given to them or their bank but instead sent by the purchasers to the ATO;

6. risks of the buyer not sending the 10% on (but still getting the property)

7. ongoing risks of withholding and other taxes payable to the ATO.

8. what happens if the disposer doesn’t get the certificate, variation or declaration in a timely manner?

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.

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