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Australia – Victorian Budget 2015/2016: 3% Additional Duty For Foreign Purchasers On Residential Property.

22 May, 2015

 

Legal News & Analysis – Asia Pacific – Australia – Construction & Real Estate

 

In Brief

 

The Victorian Government has introduced a Bill to implement the 3% stamp duty surcharge on foreign purchasers of residential property, announced in the 2015/2016 State Budget.

 

Timing And Retrospective Effect

 

If passed in its current form, the changes will affect:

 

  • land transfers which occur on or after 1 July 2015, even if contracts were entered into before that date (i.e. the change in law will have retrospective effect despite announcements suggesting otherwise),
  • acquisitions of interest in landholders will occur on or after 1 July 2015, but there is grandfathering of contracts or arrangements entered into before that date.

 

How Does The Surcharge Apply?

 

An additional 3% stamp duty surcharge applies (in addition to the existing 5.5% duty) to a transfer of residential property to a foreign purchaser.

 

For example, the surcharge applies to both the following transactions:

 

  • a foreign developer acquires land that the developer intends to develop into residential land,
  • the developer develops the property (builds an apartment), then sells developed residential lots (the apartments) to foreign purchasers.

 

Generally, stamp duty concessions do not apply to a foreign purchaser in respect of the 3% additional duty. This includes the off-the plan concession, the partition concession, and the trustee concessions.

 

The 3% surcharge will also apply to a landholder duty acquisition by a foreign purchaser in an entity holding residential property.

 

‘Foreign Person’

 

The provisions apply to:

 

  • a foreign natural person,
  • a corporation incorporated outside Australia or in which a foreign person has a controlling interest (more than 50% voting power or potential voting power, a concept taken from the Foreign Acquisitions and Takeovers Act, or more than 50% shareholding, or as determined by the Commissioner under a broadly defined control test),
  • a trust in which a foreign person has a substantial interest (more than 50% of capital entitlements, or as determined by the Commissioner under a broadly defined control test).

 

The Treasurer has power to determine that a person does not have a controlling or substantial interest.

 

‘Residential Property’

 

The provisions apply to ‘residential property’, defined as land in Victoria on which there is a building, or on which a foreign purchaser intends to build a building, designed and constructed solely or primarily for residential purposes and which may lawfully be used as a residence.

 

Land Tax Changes

 

A 0.5% land tax surcharge will apply to land owned by an ‘absentee owner’, from the 2016 land tax year. An absentee owner is, broadly, a foreign natural person who does not ordinarily reside in Australia, a foreign corporation or a corporation in which an absentee person has a controlling interest, and a trust with an absentee beneficiary in certain circumstances.

 

herbert smith Freehills

 

For further information, please contact:

 

Jinny Chaimungkalanont, Partner, Herbert Smith Freehills

jinny.chaimungkalanont@hsf.com

 

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