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Foreign resident capital gains withholding payments – impacts on foreign and Australian residents

By Nick Psarros

On 9 May 2017, the Government announced proposed changes to the foreign resident capital gains withholding (FRCGW) rate and threshold. The changes will apply to contracts entered into on or after 1 July 2017:

  • for real property disposals where the contract price is $750,000 and above (currently $2 million)
  • the FRCGW withholding tax rate will be 12.5% (currently 10%).

The existing threshold and rate will apply for any contracts that are entered into before 1 July 2017, even if they are not due to settle until after 1 July 2017.

Background

Broadly, where a foreign resident disposes of certain taxable Australian property, the purchaser is required to withhold an amount from the purchase price (see note below) and pay that amount to the Australian Taxation Office (ATO).

Note: the legislation specifies that the withholding is actually on the “first element of the cost base”. However, as purchase price is understood by vendors and purchasers, and in many instances will equate with the “first element of the cost base”, we have used the term purchase price for simplicity.

Legislation and supporting material

The Treasury Laws Amendment (Foreign Resident Capital Gains Withholding Payments) Bill 2017External Link was introduced to Parliament on 1 June 2017.

For transactions prior to 1 July 2017 the threshold and rate as stated in Tax and Superannuation Laws Amendment (2015 Measures No. 6) Act 2016External Link will apply.

Information on the application of the FRCGW is available on the ATO website and via the following links:

More information

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