澳洲异常复杂的税务难题, 请教税务达人

在澳大利亚税务




Company A purchased a residential investment property in 1995 。

Company A’s only activity is to derive passive rental income ($20K each year)

Mr X is the sole director and shareholder of Company A

The land was rapidly appreciating in value, the cost base of the property is $200K, but the land value is $1M now

Mr X proposed to demolish the building and subdivide and land and build 4 units capable of being strata titled. 3 units will be transferred to Mr X’s three children, 1 unit will be retained by Company A as a rental property to be held for the long term

Company A and Mr X are not in the business of property development and have no other business relating to property development

The proposed project to build the dwellings will be contracted to a builder.

Company A, Mr X and his children will not have a direct involvement in the construction of the dwellings




My questions:

1. Company A proposed to enter into a joint venture agreement with Mr X three children, Company A’s involvement in the project was to provide the land. The total construction cost will be shared between Mr X's children and Company A based on the value of the 4 units. What are the GST, CGT and VIC stamp duty issues?

2. Anther plan is that Company A to sell some interests in the residential property to MrX three children before construction, so they become tenants in common and each have shares in the land before subdivide. Then Company A and three children shared the total construction cost for the project. Three units will be transferred to three children at the end of the project. the last one will be retained by Company A as a long term investment. What are the GST, CGT and VIC stamp duty issues?  Does CGT rollover relif apply for the transfer?

评论
It seems the biggest mistake made by X was to use a company to purchase the property rather than himself as an individual years ago, creating the inevitable CGT situation.

In my opinion, it seems neither option mentioned would provide the desired outcome - reducing due taxes.

If, it is a if, that the block can be subdivided into 3 or 4 sub-blocks, so that individuals can purchase the sub-blocks and build their own (
Torrens title) houses, then I could see lowered CGT, GST and stampduty.  

The way you descibed it, I could not see a way. Hope others could offer different opinions.

评论
Yes, i totally agree, the initial structure was not set up correctly.

I also agree that Company A subdive and then sell the block to the children is an easy way, but client thinks it will take much longer for council to approve. They prefer to use joint venture/tenants in common for the project. Anyone has experience in dealling with the tax issues for this kind of property development ?

评论
几个地方不是很明白,请楼主详细点:
1.company a的本身是属于什么性质的
2.一年的turn over是多少.
3. Mr X年纪是多少大

评论

company only derives passive rental income from one residentail property
Annual Turnover less than 25K
Mr X - 65

Small Business CGT Concession is not relevant because the company does not carry a business , the property is never used in the couse of carrying business by connected parties or affiliates.



评论
There is another way.

The company can issue more shares to 3 children at the cost of building cost. The land will be subdivided and held in the company. The company cannot claim any GST on the building cost. But there will be no CGT issue now.

After mr x pass away years later, the shares will be transferred to children or held in deceased estate. CGT only arises when they sell the property to outsiders.

评论


The land will be subdivided and held in the company" 那房子造好了。只能全部出租啊。
如果自住。。DIV7A issue ????

评论

http://www.ato.gov.au/businesses ... =/content/40556.htm


The exception applies where:

1. the provider of the dwelling is a company that owns a legal or equitable interest in the land on which the complex is erected
2. there is more than one share in the company, and each share (whether singly or as part of a parcel of shares) gives the relevant shareholder the right to occupy a flat or home unit in the complex
3. each flat or home unit in the complex is covered by a share, or a parcel of shares, in the company
4. the dwelling is provided to the entity because a shareholder holds such a share, or parcel of shares
5. the company does not have legal or equitable interests in any assets other than legal or equitable interests in:
• the complex and the land on which it is erected
• any related land and buildings
• any related plant, machinery, equipment, furniture or fittings
• any assets relating to the management and maintenance of the complex
6. the assessable income of the company is derived predominantly from:
• managing and maintaining the complex (including the related assets mentioned above)
• interest and dividends relating to income derived from managing and maintaining the complex (including the related assets mentioned above).

The exception does not apply to a case where the interposed entity rules in Division 7A apply.


评论

Good idea. Thank you.

Further steps:

1. The shareholders can then surrender of shares in exchange for taking titles in the units?

2. The ownership of the shareholder's share will end and a stratum unit (the new asset) will be acquired by the shareholders as part of the strata title conversion.

3.  The units then effectively transferred to the children without triggering CGT, because the shareholders of the company are entitled to obtain a rollover under section 124-190 of the ITAA 1997 where they receive strata title in exchange for surrendering the shares?

If the above strategy works, the only issue I think is the issued share price and VIC stamp duty. Market substituion rule/value shifting rule will apply, it looks like Mr X will have a huge upfront capital gain and no CGT rollover relif is available to him.  Also, it is a land rich company, VIC stamp duty will apply.

Any Comment?




评论


评论
well, you don't need pay CGT, dont need involve in any child, all amount of GCT will be excempted.
use Small business entity CGT relief, 15years full excemption should be ok.

评论


15 year small business CGT exemption is not available.

Section 152-10 outlines the various basic conditions which need to be met before a taxpayer can access the small business CGT concessions.

Paragraph 152-10(1)(d) addresses one of these conditions and states the requirement that 'the CGT asset satisfies the active asset .

As the property is never used in the couse of carrying business by taxpayer , its connected parties or affiliates,  all it receives is passive rent, hence the property is not considered to be  an active asset under section 152-40 it cannot pass the active asset test in section 152-35 and fails one of the basic conditions for relief at paragraph 152-10(1)(d). It follows that the taxpayer is unable to access any of the small business CGT concessions in relation to the disposal of this property.


评论

what's kind of business then?
you just told me company is not carrying on rental or development property business, and all company revenue comes from rental income. that does not make sense.

评论

Company only holds passive investment - one residential property

Only income is the rent from one residential property.

Does the company carry on a business?

Thanks

评论
once you registered as a company, you should descripe what's kind of business activities, is that investment on property or something else?

评论

investment on property

But I think Small Business CGT relif is not available because the main use of the asset was considered to be the derivation of rent. section 152-40(4)(e) excludes it.




评论

Firstly, the company will not be eligible to SBE CGT Concession. It's not conducting a business. The property is only a passive investment. Also, it doesn't pass the active asset test.

Second, if you are going to do the issue of share strategy, my thoughts are:

1. If new shares are issued, they must be at market price, otherwise value shifting rules will apply given the value will be over $150,000. However, incoming shareholders will need to have enough cash to cover it, or Div 7A applies.

2. If existing shares are sold, there's no difference to sell the property.

Lastly, I don't think the rollover under S 124-190 will apply . Because, the company is not a home unit company and shareholders don't have "right to occupy a unit". Normally, rollover applies if a) company has the legal ownership of the land and any building on it, b) a right of occupation to an area of the building is granted to other parties (e.g. shareholder).

Please correct me if I am wrong. Thanks

评论

Thanks for your reply.

My thoughts:


Agree -   The company will not be eligible for SBE CGT Concession.

Agree -    If new shares are issued, they must be at market price, otherwise value shifting rules will apply given the value will be over $150,000. However, incoming shareholders will need to have enough cash to cover it, or Div 7A applies.


Disagree - If existing shares are sold, there's no difference to sell the property.

Reason:   Shareholder sells share, 50% general discount is avaibale, capital gain will be included in the individual's tax return and taxed at marginal rate,  Company sells property, no 50% discount, taxed @ 30% company tax rate. Then ccompany needs to distribute the dividend to shareholder, principle and tax rates are totally different/


Diagree -  Lastly, I don't think the rollover under S 124-190 will apply . Because, the company is not a home unit company and shareholders don't have "right to occupy a unit". Normally, rollover applies if a) company has the legal ownership of the land and any building on it, b) a right of occupation to an area of the building is granted to other parties (e.g. shareholder).

Reason:  The ownership  of share may give shareholder the right to occupy the property, If the company title of the units are transferred to strata title, he will continue to own his particular unit. Then the conditions of subsection 124-190 will met.

What do you think?

评论

Yes, I forgot the CGT discount. You are correct.

I am not 100% sure about the rollover. But, after revisit the section, I am still under the impression that if it's a company, it applies to home-unit company or similar arrangement, not all companies.

But, it if two individuals bought a land tenants in common, then subdivide & transfer title , the rollover will apply.

Sction 124-190 is basically a rewrite of s 160ZZPG of ITAA 1936, so I might be useful to read TR97/4 before consider the rollover relief.

I would also seek advice from a liquidator to seek if there's any CGT consequences, because effectively what you are doing is to dissolve the company eventually.



评论

Thanks so much, this strategy is a complex area.  We may need to seek specialist advice before undertaking any transaction.


评论

sounds like your guys right
you mean shareholder or partnership?
i don't think shareholder can be in proportion in CGT asset of company, but partnership can.

评论
不顶

评论

澳洲中文论坛热点
悉尼部份城铁将封闭一年,华人区受影响!只能乘巴士(组图)
据《逐日电讯报》报导,从明年年中开始,因为从Bankstown和Sydenham的城铁将因Metro South West革新名目而
联邦政客们具有多少房产?
据本月早些时分报导,绿党副首领、参议员Mehreen Faruqi已获准在Port Macquarie联系其房产并建造三栋投资联

税务

税务

店里帮别人代售的货款税和gst怎么交?

澳大利亚我们礼品店M42.au有些多余的空间,最近想帮别的厂商代售一些产品,请问代收的这些货款税和gst也会算在我们头上吗?怎么做账比较好? 评论 厂商没有在澳洲注册公司注册GST?什么都没 ...

税务

买房贷款夫妻比例和报税比例请教

澳大利亚请教大拿们,如果夫妻一方工资收入高,假设买投资房贷款申请按80:20跟银行申请的贷款,那是不是每年报税时(负扣税,卖房时计算CGT)就必须按同样比例分摊? 评论 关键是有贷款 ...

税务

请教海外存款

澳大利亚请教: 如果以往年度报税的时候未提供非澳洲存款的信息,以后年度报税的时候想加上这个存款信息的话(因为也会有少量的利息收益),会有什么麻烦吗? 比如因为以前没声明,A ...

税务

投资房deduction的时间卡点问题

澳大利亚我知道关于投资房deduction的帖子很多,但是貌似没有讨论这个时间卡点问题 意思就是,我知道比如maintain和repair和pest control这些,可以算deduction 那么问题来了,如果投资房想收回自住, ...

税务

大家有没有收到这个邮件

澳大利亚DearXX, I am writing to you about your application for the 2021 COVID-19 Micro-business Grant for XX Service NSW regularly completes compliance reviews of NSW Government grant programs. We are now carrying out compliance reviews of the 2021 ...

税务

负扣税到底省了税没有?

澳大利亚不讨论折旧,只讨论负扣税。只是想讨论一下原理,非专业人士。理解可能有错误,请不要以此为依据。请教一下,看我的理解对不对。我的理解是,负扣税并没有省太多的税。假设房 ...

税务

投资房六年的税务问题

澳大利亚投资房有个六年法则,就是只要自己住过了,之后搬出来,在六年之内,还能算自住房。 我的情况是一开始这个房子是自住的,但是住了一年以后,我就搬出来了,这个房子给中介出租 ...

税务

自住房refianance的报税问题

澳大利亚请问自住房已经fully offset,refinance出来的部分用来放在家庭信托里面买投资房 请问自住房的这个refinance部分可以报税吗?可以报negative gearing吗? 如果信托里面的投资房是正现金流,那 ...

税务

退税中的状态

澳大利亚退税中的状态,outcome显示processing和balancing account有什么区别,分别各持续多久 评论 balancing account 通常是 ATO 已经完成你的退税。但ATO还不能把钱马上退给你, ATO再用一周时间问Center ...

税务

ESS Dividend被用来再买股票的缴税问题

澳大利亚向各位致敬先! 本人选择公司配股ESS产生的股息再用来买股票。当然这部分也会和其他的股票一样,在3年后到deferred tax point的月份/年度也会按规定缴税。所以我认为,在得到股息的月 ...

税务

Etsy网店报税疑问

澳大利亚想和国内的合伙人一起开一个Etsy网店,对于税务上有些疑问,希望得到专业会计的解答。 网店是我来注册开的,买家是付款给我的,但这些钱里面(假设扣除了Etsy抽成),我只能得到 ...

税务

ABN:Company vs Sole Trader

澳大利亚已有全职工作,目前有私活但不知道要开成有限责任公司形式还是sole trader。因为只能周末或者晚上做,一年收入估计就1-2万。因为工作内容如果涉及到金额较大的项目,会存在失误风险 ...

税务

请教一个定投基金卖出时的税务问题

澳大利亚5年前买了1万份某基金,每份10块,共10万块 4年前买了1万份某基金,每份15块,共15万块 现在基金每份20块,如果我想卖掉5千份,共计10万块。那这10万块里,税务上本金和CGT应该怎么算 ...

税务

公司名下房产出售税务问题

澳大利亚公司名下一处投资房,期间进行过装修,现在觉得出租一直很多事想卖掉。是不是除了公司所得税还要交增值部分的CGT?这感觉是一个收益交2次税,期间的装修费用是否也可以在计算 ...

税务

求教投资房转自住房税务问题

澳大利亚请教大神,假如今年买的投资房,装修了一下,没租出去,下一个财政年打算变成自住房,那装修的钱和买房的cost还能抵 这个财政年度的税吗?如果抵了,会对以后造成什么影响吗? ...

税务

div 293的问题,非常感激

澳大利亚看ATO网站写: If your income and concessional super contributions total more than $250,000, check if you have to pay Division 293 tax. 问题来了: 1 这个div 293的income是各种抵扣税之后的taxable income吗? 2 额外打的养 ...