The Victorian Government has targeted foreign property owners once again, by announcing it will increase the Foreign Purchaser Additional Duty from 7% to 8% and the Absentee Owner Surcharge from 1.5% to 2%.
Increase to the Foreign Purchaser Additional Duty (FPAD)
The Government has announced that it will ‘harmonise’ the Foreign Purchaser Additional Duty (FPAD) with New South Wales (NSW) by increasing the FPAD rate from 7% to 8%. The increase will result in a top rate of duty of 13.5% for acquisitions of residential property. The surcharge will apply to contracts entered into on or after 1 July 2019.
For Victorian residential property with a purchase price of $12 million, the increased FPAD rate will result in additional FPAD payable of $120,000.
Increase to the Absentee Owner Surcharge
The Government has also announced that it will increase the Absentee Owner Surcharge (AOS) rate from 1.5% to 2.0% from the 2020 land tax year, to align the Victorian and NSW rates. This increase will result in a top rate of land tax of 4.25% and will apply to residential and commercial property.
Whilst the Government has stated that the increased AOS rate results in ‘harmonisation’ with the NSW provisions, taxpayers should be aware that there are material differences between how the Victorian and NSW land tax surcharges apply to taxpayers. One important distinction is that Victoria imposes the AOS on absentee owners of both commercial and residential land, while NSW imposes its land tax surcharge on residential land only.
For example, an absentee developer who owns Victorian commercial land with a site value of $12 million will be required to pay $467,475 per year in land tax (including AOS). The increase in the AOS is estimated to bring in $196.1 million over the forward estimates period. In comparison, an absentee developer who owns commercial land in NSW of the same value would be required to pay land tax of $212,104 per year. This is less than half of the Victorian land tax payable per year.
How could the increased surcharges affect you?
In the midst of a property downturn and a huge shortfall in estimated property tax revenue in the past year, the Victorian Government should be incentivising property developers into the Victorian property market in the medium term if it wants to encourage development activity. However, the increased surcharges are likely to stymie, not encourage, such activities.
The surcharges are likely to disincentivise investors and developers from investing in the Victorian property market and could force them to look to other states or countries for new projects. The above AOS example demonstrates that increased surcharges in Victoria may place foreign developers at a competitive disadvantage.
In the face of the increased surcharges, it has become more important than ever that taxpayers structure the purchase of their land correctly to ensure that the vehicle used to purchase land does not result in an unintended FPAD or AOS consequence. It is also timely to remind taxpayers to review their trust deeds (and in particular, their discretionary trust deeds) to ensure they accurately reflect any intention by the trustees to prevent or limit distributions to foreign persons. This will protect trustees of discretionary trusts from being unintentionally caught by the FPAD provisions where there is no intention to distribute to foreign persons.
For developers who carry on substantial development activities in Victoria, it is worthwhile exploring whether or not an exemption from the AOS or FPAD could be obtained. A successful exemption application can result in significant ongoing land tax savings for the landowner.
The Budget announcement also represents an opportune time for both landlords and lessees to review the terms of their existing leases. For landlords, it is important to check whether under the terms of a lease, the AOS can be passed on to tenants. Conversely, for tenants, it is important to understand whether their landlord is an absentee owner and can pass the surcharge on to them.