Massons

New laws force foreign resident compliance with tax liabilities

Written by Leisha de Aboitiz on April 1, 2016

Overview of the new CGT withholding regime

iStock_33752224_MEDIUM-CGT_1

1. Why are these new laws being introduced?
1. 为何有新法律出台?

The new laws are intended to assist in the collection of foreign resident CGT liabilities in relation to both direct and indirect Australian real property interests. Historically voluntary compliance has been very low, and enforcement procedures have been costly and difficult to undertake. The new laws (quite cleverly) push responsibility for implementation and enforcement onto purchasers, making purchasers responsible for withholding the non-final CGT amount from the purchase price (ie 10%) and paying it directly to the Australian Taxation Office (ATO). This will force foreign resident vendors to comply with their CGT liabilities, and will prompt them to either take preventative steps to reduce or avoid the 10% withholding tax before it occurs, or to seek an adjustment or credit when they lodge their income tax return (eg similar to pay as you go withholding from salary and wages in Australia).

新法出台后,海外居民在澳置业的直接或间接获利,都会被政府强制收缴增值税税。过去自愿纳税的人不多,政府又监管不力,旧法的执法程序困难,执法成本很高。新的法律(非常聪明地)资本增值税的收缴任务推给了买房人。买家从房屋购买价中直接缴纳税款,并转交给澳大利亚税务局(ATO)。这一规定将迫使海外居民履行其纳税义务,之前减少缴纳,甚至逃税的伎俩从此失效。10%的预扣所得税,或者在进行收入退税的时候进行调整(比如从工资中扣税)。

2. How does it work?
2. 如何操作?

The purchaser of a relevant CGT asset must withhold 10% of the market value of the asset from the purchase price and pay that amount to the ATO on or before the day that the asset is acquired (ie the day of settlement), unless the purchaser is in receipt of a clearance certificate, a notice of variation, or a vendor declaration.

如果没有免税凭证、税收变更通知或者卖家声明,买家必须在购买价中支付房产市场价值10%的增值税,并在交易当天或者之前转交给ATO。

What types of transactions will be affected?
哪些交易会受到影响?

The new regime will apply to:

新的制度将实施于:

(a) direct transactions relating to taxable Australian real property (eg land, buildings, lease premiums, mining, quarrying and prospecting rights), including options or rights to acquire taxable real property interests; and
与澳大利亚不动产(如:土地、建筑、租赁保证、矿产、采石和探矿权)纳税相关的交易,包括不动产期权的获利,以及

(b) indirect transactions relating to interests in Australian entities where the majority assets of the relevant entity consist of the kinds of real property interests identified in part (a) above.
与澳大利亚公司相关的,包括以上各不动产类型的间接交易。

3. What types of transactions are excluded from the regime?
3. 哪些交易不包含制度之内?

Some examples of acquisitions not caught by the new regime are:
一些案不包含在新法律之内:

(a) real property transactions where the “market value”[i] is below AUD 2 million;
不动产的“市场价值”在澳币200万以下;这里需要注意,政府会评估物业市场价值,不会允许买卖双方私下压低价格的逃税行为。

(b) transactions listed on an approved stock exchange; and
房产交易是获批的股票交易的一部分;

(c) acquisitions where the foreign resident vendor is under external administration or in bankruptcy.
海外住户在面临外部管理或破产情况下,房产交易是清算收购的一部分。

4. What happens if the purchaser doesn’t withhold the tax?
4. 买家不缴税会怎样?

If a purchaser fails to withhold the correct amount and pay it to the ATO on completion, then the penalty payable by the purchaser will be equivalent to the amount that it should have withheld had it acted appropriately (eg 10% of the purchase price).
如果买家没有以正确的方式将代缴的增值税转给ATO,那么买家将要受到与应交税额一致的罚款(如购买价的10%)。

5. What does the vendor need to do?
5. 卖家需要做什么?

If the vendor does not agree that a standard withholding amount of 10% is appropriate, it will need to either:

如果卖家不同意10%作为税款,那么就需要:

  • obtain a clearance certificate (eg for Australian resident vendors);获得官方声明(比如,卖家是澳大利亚自主居民就不用交税)
  • give a declaration to the purchaser in accordance with the statutory requirements. However, vendors should be aware that there are significant penalties for giving false declarations; or给买家法定要求的声明,然而卖家应当注意,错误的声明面临严重的惩罚
  • obtain a notice of variation seeking a lesser withholding rate.获得寻求变更税率的通知

6. What kind of processes will be put in place and how long will things take?
6. 有哪些步骤,需要花多长时间?

The online systems are still being finalised, however, the ATO has advised that:

在线系统仍在敲定中,ATO建议:

  • certificates and notices will be available via a simple online system, accessible via the ATO website;证明和通知将可以通过登陆ATO官网,通过简单的在线系统申请获得;
  • clearance certificates should be available within a matter of days, will be valid for 12 months and can be requested well in advance of a specific transaction; and免税证明应该在一定的时间段内发送,有效期12个月。卖方如果满足免税条件,可以在房产交易前几天向政府提出申请;
  • a notice of variation will be a much longer process (eg at least a month).税收变更的过程会更长(如至少需要一个月的时间)。

Some practical examples…
一些实际案例

 

Transaction
交易
Foreign resident action
外国居民做法
Purchaser’s withholding obligation
买家扣缴义务
Sale of real property with market value of AUD 1.1 million

市场价澳币110万的不动产销售

No action required

不需要做任何事

Nil. The market value is less than AUD 2 million, so it is an excluded transaction (see part 4 above)

市场价低于澳币200万的不包含在内

Sale of real property with market value of AUD 2.5 million

市场价澳币250万的不动产销售

No notice of variation or declaration provided to purchaser

不需要给买家更改通知或声明

Purchaser must withhold and remit to ATO full 10% (ie AUD 250,000)

买家必须给ATO提交10%完整税款(如澳币250,000)

Notice of variation obtained and provided to purchaser prior to completion (eg showing variation from 10% to 6%)

获得变更通知,并在交易完成之前提供给买家(比如从10%变为6%)

Purchaser can rely on the notice of variation and will withhold and remit to the ATO the varied amount (ie AUD 150,000)

买家可以依靠更改通知给ATO提交更改后的税款(如澳币150,000)

Appropriate vendor declaration provided to the purchaser prior to completion

在完成之前给买家提供恰当的卖家声明

Purchaser can rely on the declaration if it does not believe the declaration to be false. Purchaser can adjust the amount withheld on completion having regard to the declaration

买家可以以声明为准,可以根据声明调整缴税数额

 

For further information please contact Leisha de Aboitiz.

 


Disclaimer: This article is intended to provide commentary and general information.  It should not be relied upon as legal advice. Formal legal advice should be sought having regard to any particular facts or circumstances.

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