The Tax Laws Amendment (Foreign Resident Capital Gains Withholding Payments) Regulation 2016 was registered on Monday 9.5.2016.

  • It amends the Income Tax Assessment Regulations 1997 and the Tax Agent Services Regulations 2009. The Amendment Regulation prescribes Chi-X Pty Ltd as an approved stock exchange so that transactions that take place on Chi-X fall within the “on-market transaction” exemption from the foreign resident capital gains withholding regime that applies from 1 July 2016.
  • It also exempts conveyancers (non-lawyers†) who perform certain services in relation to the making of payments under the foreign resident capital gains withholding regime from the Tax Agent Services Act 2009. The TASA exemption will commence on Tuesday 10.5.2016 and apply until 1 January 2018.

†  Lawyers providing legal services are not penalised under s50-5(1)(e) of the TASA.

[Federal Register of Legislation: 2016 Amending Regulation & Explanatory Statement]

Extract from Explanatory Statement

Background

The Tax Laws Amendment (Foreign Resident Capital Gains Withholding Payments) Regulation 2016 (the Regulation) makes amendments to the Income Tax Assessment Regulations 1997 (ITAR) and the Tax Agent Services Regulations 2009 following the introduction of the foreign resident capital gains withholding regime.

Under the foreign resident capital gains withholding regime (see Subdivision 14‑D of Schedule 1 to the Taxation Administration Act 1953 (TAA)), from 1 July 2016, purchasers of certain Australian assets are obliged to withhold 10 per cent of the purchase price of the asset on settlement where they have purchased the property from a foreign resident, and to remit this amount to the Commissioner of Taxation (the Commissioner). Australian resident vendors can apply to the Commissioner for a clearance certificate indicating that the withholding is not required.

Extending ‘on-market transactions’ exemption to Chi-X exchange

A number of transactions are excluded from the scope of the foreign resident capital gains withholding regime. These include ‘on-market transactions’, which are transactions that are conducted on an approved stock exchange. This is because the nature of these transactions makes it impossible for a purchaser to determine the identity and residency status of their counterparty. Schedule 1 to this Regulation adds Chi-X Australia Pty Ltd (Chi-X) to the list of approved stock exchanges, so that transactions conducted on Chi-X fall within the on-market transactions exception.

A number of transactions are excluded from the scope of the foreign resident capital gains withholding regime. These include ‘on-market transactions’, which are transactions that are conducted on an approved stock exchange. This is because the nature of these transactions makes it impossible for a purchaser to determine the identity and residency status of their counterparty. Schedule 1 to this Regulation adds Chi-X Australia Pty Ltd (Chi-X) to the list of approved stock exchanges, so that transactions conducted on Chi-X fall within the on-market transactions exception.

Section 909-1 of the Income Tax Assessment Act 1997 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Item 1 of Schedule 1 to the Regulation inserts Chi-X Australia Pty Ltd into Schedule 5 to the ITARInserting Chi-X into Schedule 5 means that Chi-X falls within the definition of approved stock exchange in subsection 995-1(1) of the Act. This has the effect that ‘on‑market transactions’ undertaken on Chi-X are not caught by the foreign resident capital gains withholding regime, and that transactions on Chi‑X are treated consistently with transactions on other approved stock exchanges. Subsection 995‑1(1) of the Act defines an approved stock exchange as a stock exchange named in the regulations.

Temporary exemption from the Tax Agent Services Act 2009 requirements for conveyancers providing certain services

The Regulation also exempts, for a limited time, conveyancers who perform certain services in relation to the making of payments under the foreign resident capital gains withholding regime from the Tax Agent Services Act 2009 (the TASA).

Under section 50-5 of the TASA, any entity that provides a tax agent service and charges or receives a fee or other reward for providing that service must be registered with the Tax Practitioners Board. Section 90-5 of the TASA provides that a tax agent service is, amongst other things, any service that relates to representing an entity in their dealings with the Commissioner of Taxation, that is provided in circumstances where the entity can reasonably be expected to rely on the service for either or both of the following purposes:

  • to satisfy liabilities or obligations that arise, or could arise under a taxation law; and
  • to claim entitlements that arise, or could arise, under a taxation law.

The Australian Taxation Office is developing various forms in preparation for the commencement of the foreign resident capital gains withholding regime. During consultation on these forms it became apparent that providing a service that included completing the forms could constitute a tax agent service within the meaning of section 90-5 of the TASA. Consequently, conveyancers, who are not currently required to be registered under the TASA, would be required to register as tax agents if they wished to provide the service of completing these forms.

The purpose of this amendment is to ensure that conveyancers who remit amounts to the Commissioner and complete the less‑complex purchaser payment notification form are not providing a tax agent service under the TASA. This is to be achieved by the addition of an item to the list of services specified in regulation 13(1) of the Tax Agent Services Regulations 2009 not to be a tax agent service by inserting the following new paragraph.

(ka) a service provided by a person licensed or registered under a law of a State or Territory to carry on a conveyancing business (however described), or business as a settlement agent or conveyancing agent, to the extent that the service involves or relates to paying an amount under section 14-200 in Schedule 1 to the Taxation Administration Act 1953

Subsection 90-5(2) of TASA allows regulations to be made that specify services that are not a tax agent services for the purposes of this Act.

The exemption is provided for a service provided by a person licensed or registered under a law of a State or Territory to carry on a conveyancing business, or a business as a settlement agent or conveyancing agent, to the extent that it involves or relates to remitting to the Commissioner amounts withheld under section 14-200 of Schedule 1 to the TAA.

The exemption in Item 2 of Schedule 1 is provided until 1 January 2018. This will allow sufficient time for administrative solutions to be developed so that, in most cases, the completion of this form will not be a tax agent service. Consequently, Item 3 of Schedule 1 to the Regulation serves as a sunsetting clause.