This article provides a short summary of two new taxes to be imposed on foreign persons investing in Australian real estate, being:
the foreign buyer duty surcharge that is set to apply in Western Australia on and from 1 January 2019 (Duty Surcharge); and
the annual vacancy fee (Vacancy Fee), introduced by the Federal Government in 2017 and administered by the Australian Tax Office (ATO).
The Duties Amendment (Additional Duty for Foreign Persons) Bill 2018 (WA) (Bill) which introduces the Duty Surcharge has recently passed both houses of Parliament and is set to receive Royal Assent shortly. As Royal Assent is a formality, the Bill in its current form is expected to become law in the next few weeks.
The Bill proposes a Duty Surcharge which imposes an additional duty of 7% on direct and indirect acquisitions of residential property by a foreign person on and from 1 January 2019.
The Duty Surcharge is intended to apply in parallel with the standard transfer duty framework.
The 7% additional Duty Surcharge is payable on top of the standard transfer duty (approximately 5%) payable on most acquisitions in Western Australia. This brings the total duty payable by a foreign person on residential acquisitions up to approximately 12% of the consideration paid (or the unencumbered value of the residential property, whichever is the higher).
The concept of a Duty Surcharge is not a new one. Equivalent surcharges are currently in place in the other states (approximately 8% in New South Wales, 7% in Victoria, Queensland and South Australia and 3% in Tasmania).
Who is a Foreign Person?
The definition of foreign person under the Bill differs from the definition of foreign person under the Foreign Investment Review Board (FIRB) framework. Under the Bill, a foreign person is defined as:1
This is in contrast with the position under the FIRB framework where an entity or trust is a foreign entity if foreign persons hold a substantial interest (20%) in the entity or trust or a group of foreign persons in aggregate hold a 40% interest in the entity or the trust.
What is Residential Property?
Residential property includes Western Australian land that:4
The definition of residential land however explicitly excludes land to be used for aged care facilities, commercial residential premises (i.e. hotels), retirement villages, easements and security interests.5
Foreign landholder duty
A foreign landholder is a corporation or unit trust scheme when it, or its linked entity,6 is entitled to residential property worth a total $2 million in value.
Standard duty is already payable on significant acquisitions of interests in landholder entities. For instance, the purchase of 50% or more of the units in a landholder trust or 50% or more of the shares in a landholder company.
It is proposed that the Duty Surcharge will now be payable when a foreign person obtains such an interest in a landholder entity in respect of residential property.
Exemptions and refunds
There are exemptions to the Duty Surcharge and circumstances in which a foreign person will be entitled to a refund of the Duty Surcharge.
Generally, these exemptions will apply to acquisitions of interests in residential property for which a development or subdivision of 10 or more lots is intended to be undertaken or is completed7.
That is, a foreign developer who pays the Duty Surcharge on the acquisition of the development land can apply to have the surcharge refunded.
It is important to note that, contrary to popular belief, the exemptions do not apply to a person that is the end buyer acquiring a lot in a development with 10 or more lots.
The Vacancy Fee was introduced as a measure to encourage foreign owners to make available residential dwellings for rent, thereby increasing the pool of rental properties and increasing housing affordability.
The regime is administered by the ATO and it requires a foreign person8 to lodge a vacancy fee return with the ATO within 30 days of the anniversary of the settlement of their property (or the day an occupancy certificate is issued for the property, whichever the later) (Vacancy Year) if:
The Vacancy Fee will be charged if, for at least 183 days (6 months) in a Vacancy Year, the property was not:9
A foreign person will not be able to avoid paying the Vacancy Fee by putting up their residential property for rent on a short term letting basis (i.e. Airbnb).
Failure to report on time results in the foreign person being liable for the Vacancy Fee regardless of the number of days that property was residentially occupied during the Vacancy Year.11
The amount of Vacancy Fee will generally be the same as the amount paid by the foreign person for their FIRB application. By way of example, the FIRB application fee on the purchase of a $750,000 apartment is $5,600 at the time of writing this article. If the foreign person is liable to pay the Vacancy Fee, an additional $5,600 will be charged for every Vacancy Year in which the residential requirements are not met.
A notice must be provided by the ATO to the foreign person disclosing the Vacancy Fee payable and the due date for payment (which must be at least 21 days after the date of this notice).12
Figures published by the FIRB earlier in the year suggested that real estate sales to foreign buyers have declined significantly, with the number of FIRB approvals for foreign purchases falling from 40,149 in 2015/16 ($72.4 billion) to 13,198 ($25.2 billion) in 2016/17.13 The same report cites the imposition of fees for FIRB applications from 1 December 2015 as the most significant factor which contributed to this drop in approvals.
The Duty Surcharge is estimated to bring in $123 million for Western Australia over the next four years.14 This Duty Surcharge however has been staunchly opposed by a number of industry bodies who fear that such surcharge will adversely affect what is seen as an already fragile market.
The Vacancy Fee is intended as a monetary incentive for foreign buyers to make their residential properties available for the local market if left vacant for most of the year. Whether it will achieve what was intended is only being tested now as the first vacancy fee returns roll in 12 months after the introduction of this fee.
If you are a foreign person acquiring an interest in residential property in Western Australia and require any advice in respect of the Vacancy Fee or the Duty Surcharge, we are available to assist.
 Duties Amendment (Additional Duty for Foreign Persons) Bill 2018 (WA) cl 8. See proposed section 205A.
 Ibid. See proposed section 205C.
 Ibid. See proposed section 205D.
 Ibid. See proposed section 205E.
 Ibid. See proposed section 205E(3).
 As defined in section 156 of the Duties Act 2008 (WA). Generally, unlisted entities are linked if one entity has a 50% interest or more in the other entity.
 Above n1. See proposed sections 205ZA and 205ZB.
 As defined in section 4 of the Foreign Acquisitions and Takeovers Act 1975 (Cth).
 Foreign Acquisitions and Takeovers Act 1975 (Cth) s 115C.
 As defined in the Income Tax Assessment Act 1997 (Cth) as being a person’s spouse, the person or the person’s spouse’s parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendent or adopted child, or the spouse of such a person.
 Above n9 s 115D(3).
 Ibid ss 115E and 115F.
 Foreign Investment Review Board, ‘Annual Report 2016-17’ (2018).
 Government of Western Australia, Increase in Foreign Buyers Surcharge to assist in Budget repair <https://www.mediastatements.wa.gov.au/Pages/McGowan/2018/05/Increase-in-Foreign-Buyers-Surcharge-to-assist-in-Budget-repair.aspx>