Australian Financial Review quoting SME Property Lawyers on the new withholding tax rules affecting property transactions valued $2 Million or more.

by Andrew Kleiman on 31 May 2016 No comments

Click on this link to read a Australian Financial Review article quoting SME Property Lawyers on the new withholding tax rules affecting property transactions valued $2 Million or more.

From 1 July 2016 all purchasers will need the express right to withhold the 10% if the vendor does not provide a clearance certificate from the ATO confirming the vendor is not a foreign resident. The NSW Law Society has prepared an updated REINSW Contract for Sale (2016 edition) to deal with the new withholding tax rules.  But, as with the superannuation reforms, there is an element of retrospectivity. The terms of option contracts are fixed and signed years ago using contract terms that do not allow the purchaser to withhold 10%, but these contracts are still caught by this change. So when an option is exercised, the purchaser may have a legal duty to withhold 10% of the purchase price and pay it over to the ATO, but this will be a breach of contract with the vendor who could refuse to settle unless a 100% is paid.

It is mostly property developers who use options – to accumulate development sites – and will be caught by the retrospective element.

It won’t be an issue where the vendor wants the developer to complete the sale, but say the developer has spent $1M on a DA causing the value of the property to rise. Perhaps the vendor will be motivated to terminate the contract and re-sell at a higher price with the DA to someone else. The developer’s contract terms were decided when the option was signed so he can’t change them.  If the developer can’t pay the 100% to the vendor but the contract doesn’t allow him to withhold the 10% then the vendor could refuse to settle and terminate.  Or, more likely, take advantage of the trap the developer is caught in to extract some leverage i.e. more cash from the developer.

The ATO has pointed us to certain provisions in a schedule to the Taxation Administration Act that could be used to shelter developers from a breach of contract claim where the breach is required in order to comply with tax law. Our view is that you do not want to have to rely on some obscure provision at the back of tax legislation when near the pointy end of settlement. We hope the ATO will come out with some comfort for developers caught out by this change of law.

Andrew KleimanAustralian Financial Review quoting SME Property Lawyers on the new withholding tax rules affecting property transactions valued $2 Million or more.

Changes to stamp duty on options over land

by Andrew Kleiman on 7 December 2014 No comments

Stamp duty must be now paid whenever there is a change in ownership of an option to purchase land regardless of whether that change in ownership is structured as a transfer, assignment, novation or nomination. The State Revenue Legislation Further Amendment Act 2014 (NSW) came into force on 23 October 2014. This Act amends the Duties Act 1997 (NSW) to impose stamp duty on nominations or novations of call options by treating them as if they are transfers and, therefore, dutiable with the duty calculated on the consideration given for the option.

The legislative amendments ensure that certain transactions involving options to purchase land are dutiable in the same way as a transfer of an option to purchase land. The amendments provide that a transfer of an option to purchase land in New South Wales is taken to occur if, for valuable consideration:

  1. another person is nominated to exercise the option; or
  2. another person is nominated as purchaser or transferee of the land the subject of the option on or before the exercise of the option; or
  3. the option holder agrees to a novation of the option, or otherwise relinquishes rights under the option, so that another person obtains a right to exercise the option or to purchase the land.

Changes are also made to the calculation of duty payable on the purchase of land that occurs from the exercise of an option:  the consideration for the land is taken to include the amount or value of the consideration provided by or on behalf of the purchaser for the option.

The duty then chargeable on the purchase of land will be reduced by the amount of duty (if any) paid by the purchaser for the option (for example,  a fee paid for the grant of the option from the landowner or a fee paid for the transfer of the option from the original option-holder).

Stamp duty on nominations will only apply to options granted after the legislation came into force (23 October 2014). The reduction of duty payable on the land price that is given for any duty paid on the transfer of an option will apply to options granted before the legislation was enacted and exercised afterwards. So a purchaser who paid for a transfer of an option will now enjoy a reduction in the duty payable for the land that would not have been enjoyed prior to this legislation.

For examples of how stamp duty on nominations will work in practice and an explanation of options and their stamp duty treatment generally see our blog post Stamp Duty on Sales of Options over Land.

Andrew KleimanChanges to stamp duty on options over land

Mischaracterising property development receipts as capital gain

by Andrew Kleiman on 11 August 2014 No comments

The ATO has released a taxpayer alert on those using trusts to mischaracterise the proceeds of property development as capital gains rather than income on revenue account in order to access the 50% capital gains discount. The alert can be read at: TA 2014/1

The ATO states in its alert:

“This Taxpayer Alert applies to arrangements which display all or most of the following:

 1. An entity with experience in either developing or selling property, or in the property and construction industry, establishes a new trust for the purpose of acquiring property for development and sale.

 2. In some cases the trust deed may expressly state that the purpose of the trust is to hold the developed property as a capital asset to generate rental income. In other cases the trust deed may be silent as to its purpose.

 3. Activity is then undertaken in a manner which is at odds with the stated purpose of treating the developed property as a capital asset. For example:

  • Documents prepared in connection with obtaining finance for the development may indicate that the dwellings constructed on the land are to be sold within a certain timeframe and that the proceeds are to be used to repay the loan.
  • Communication with local government authorities overseeing building approvals may describe the activity as being the development of property for sale.
  • Real estate agents may be engaged early in the development process, and advertising to the general public may indicate that the dwellings/subdivided blocks of land are available to be purchased well in advance of the project’s completion, including sales off the plan.

4. The property is sold soon after completion of the development, where the underlying property may have been held for as little as 13 months.

5. The trustee treats the sale proceeds as being on capital account, and because the trustee acquired the underlying property more than 12 months before the sale, it claims the general 50% capital gains tax discount (in other words, it treats the gain/profit in respect of each sale as a discounted capital gain).

On the face of it, the ATO is giving notice of audit treatment to experienced property developers not to pose as investors by characterising developments for sale as construction for rental investment in order to claim the 50% capital gains discount when the development is completed and sold.

But the alert comes off the back of the recent decision in August v Commissioner of Taxation [2013] FCAFC 85.  The decision can be read here and is a warning for less dissembling investors who develop a property with the intention to hold as a long-term investment but subsequently change their mind and sell the property for a profit after development is complete. To better ensure the property is treated a capital asset rather than trading stock they need to ensure that all documentation in relation to the property (purchase, financing, development, ownership, management, leasing, selling etc) is consistent with their stated intentions and that they can provide the ATO with that documentary evidence and documentary evidence that the decision to sell was a change of mind for a bona fide reason such as an offer to good to refuse or a change in their financial circumstances. Moreover their actual words and actions must be consistent with that  documentary evidence.  Investors purchasing property with a mind to potential development and sale down the track should seek professional tax advice at the outset.

This publication is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. The publication reflects the law at the date the publication was written which may differ at the date the publication is being read. No reader should act on the basis of any matter contained in this publication without first obtaining specific professional advice.

Andrew KleimanMischaracterising property development receipts as capital gain

Stamp duty on sales of options over land

by Andrew Kleiman on 8 August 2014 1 comment

Over the years, options have been used by property developers, speculators, marketers and investors to defer, reduce or avoid paying stamp duty on conditional or speculative property transactions.

A call option over land is the right to require someone to sell you their land for a price at some future date.  A put option over land is the right to require someone to purchase land you own.

Put options and call options are often combined in the same transaction, called ‘put and call’ option agreements.   Essentially, these are agreements to enter into a contract for the sale of land at some point in the future if either of the parties to the option agreement wishes it. The holder of the call option is the potential purchaser and the holder of the put option is the potential vendor.  If the purchaser chooses not to exercise the call option then the vendor can exercise the put option to compel the purchaser to purchase the land.

Stamp duty on grant of options

Stamp duty liability is not triggered by the grant of an option. It is triggered only when the option is transferred or sold or when the option is exercised:

  • A person acquiring a call option by transfer or sale from the option-holder (the person to whom the landowner granted the option) pays duty on the price paid for the option (note: the price for the option, not the land).
  • A person exercising an option to purchase land pays duty on the price paid for the land.

By “price” we include both monetary or non-monetary value given for the option. For arms-length commercial transactions this is all the money paid or payment-in-kind that is given for the option.  For sales at an undervalue (usually where the parties are related), the duty will be calculated on the the market value of the option.  The market value of an option depends on variables such as the value of the property, the scarcity of the property and duration of the option. As a rule of thumb, the value of an option will be the difference between the price payable for the land on exercising the option and the market value of the optioned property.

Use of options

Because the mere grant of an option does not trigger stamp duty, options are used in the following scenarios:

  • to secure development rights over a potential site without having to pay stamp duty or buy the land unless the developer can assemble the site and obtain development consent;
  • to defer stamp duty where a development may not be completed before the deadline for payment of duty on contracts for sale (15 months from exchange for off-plan residential developments and only 3 months from exchange for off-plan commercial developments);
  • to secure purchase rights over a property and lock in a price but defer duty to a future tax year;
  • to gain the exclusive right to market lots for sale for a specific period of time;
  • to permit flexibility in choosing the actual entity that will purchase the property; and
  • as sale guarantees to a developer if a buyer cannot be found on the open market.

Call Option Assignment Duty

A person acquiring a call option over land from an option-holder must pay stamp duty as explained above. But, if the call option is part of a put and call option agreement then the option-holder selling the call option must also pay stamp duty. This duty is called ‘call option assignment duty’ and is a kind of vendor duty.  The duty is calculated on the sum of the price received for the option and the price payable on exercise of the option. In other words the vendor of a call option under a put and call arrangement will pay stamp duty on the full value of the land and not merely the option value.This is explained in the example below.

  1. Alan grants a call option to Bob. Neither Alan or Bob pay any duty in relation to the grant of the option. Bob then sells the option to Carole. Carole pays duty on the price she pays for Bob’s option.
  2. Same facts as above, but when Alan granted a call option to Bob, Bob also granted a put option to Alan. So Bob has the right to buy the land from Alan and Alan has the right to sell the land to Bob.  Bob then sells his option to Carole.  Bob (not Carole) pays duty as if he was the purchaser of the land even though he is the seller of an option!

Despite its name, call option assignment duty captures not only assignments and transfers, but also sales effected by way of nominating a third party to exercise the option or purchase the land.

Practical example

Say Alan is a landowner and Bob is a developer. Bob wants to buy some inner-city industrial land from Alan on condition Bob can obtain a rezoning of the land to residential use.  Alan and Bob enter into a put and call option agreement for the sale of Alan’s land at $2 Million with an option period of 1 year. Alan grants a call option to Bob for a nominal fee of $10.  Bob grants a put option to Alan also for $10.   Bob can exercise his call option at any time within the year, but Alan cannot exercise his put option unless and until the land is rezoned. No stamp duty is paid at this point.

Six months later, Bob obtains the rezoning. He decides to realise his profit now and sells his call option to another developer, Carole, for $500,000.  Carole exercises the call option to purchase the land from Alan.

  1. As vendor of the call option under a put and call agreement, Bob pays stamp duty calculated on $2.5 Million ($2 Million + $500,000).
  2. As purchaser of the call option, Carole pays stamp duty on $500,000.
  3. As purchaser of the land on exercising the option, Carole pays stamp duty on $2 Million.

Of course, Bob is not in his right mind if he knowingly incurs such a stamp duty liability on land he will not be purchasing. If Bob has confidence in his ability to get the land rezoned and wants the flexibility of on-selling the option, he does better by purchasing a stand-alone call option from Alan for real money that will be counted towards the purchase price on exercising the option. Bob could then sell the option to Carole without incurring any stamp duty liability.

And, until now, it would have been possible for Carole to avoid stamp duty on the purchase of a stand-alone call option. Typically, an option agreement contains a nomination procedure whereby Bob may nominate a third party like Carole to exercise the option or purchase the land. Properly drafted and structured, such a nomination can take effect as a novation of rights that is not subject to stamp duty even if a substantial amount of money changed hands for the nomination.

The State Revenue Legislation Further Amendment Bill 2014

We say “until now” because legislation is wending its way through the NSW State Parliament that will impose stamp duty liability on the purchaser of a stand-alone call option even if the sale is structured as a nomination.

The State Revenue Legislation Further Amendment Bill 2014, once enacted and in force, will impose duty on nominations of options granted after the legislation is enacted. The purchaser of a call option will have to pay stamp duty when ownership of the option changes regardless of whether the sale of the option is structured as a nomination, novation, transfer or assignment.

Duty payable on the nomination will be calculated on the price payable for the option nomination (and see our comments earlier in this post on what we mean by “price”).

Duty on transfers of land following exercise of a call option

The duty chargeable on the purchase of land that occurs as a consequence of the exercise of an option is calculated on the purchase price grossed up by the price paid for the option by the purchaser (whether for its grant, transfer, exercise or otherwise) with a credit given for any duty paid on acquiring the option. In other words, you add together all the money paid by the purchaser (Carole) for the option (acquired from Bob) and the land (acquired from Alan on Carole exercising the option), calculate the duty on that total amount and then deduct any duty paid by Carole on acquiring the option from Bob.

The legislation specifically mentions that the grossing up formula applies to any money paid for the grant of an option. This means duty is payable on price paid for the grant of an option but the liability to pay that duty does not arise until the option is exercised at which point duty is payable on both the price paid for the grant of the option and the land price.

Another benefit to the taxman is to capture an uplift in the value of the land when that uplift is realised on the sale of an option from the option holder to a third party (i.e. when Bob sold the option to Carole in the example given above). Previously, the Office of State Revenue would have had to detect and challenge the land price as not capturing the total value of the land at the later stage of when the option is exercised and the purchaser presents a contract for sale to the Office of State Revenue for stamping. Youtube to MP3 converter

The practical effect of these legislative changes is explained in the following scenario.

Alan grants Bob a call option to purchase property at $2 Million for an option fee of $200,000.  The terms of the option agreement provide that the option fee will be credited towards the purchase price of the property. Bob and Carole enter into a nomination deed in which Bob novates his rights to Carole and agrees to nominate Carole to exercise the call option and purchase the property in return for Carole reimbursing him the $200,000 paid to Alan.

Stamp duty consequences under the new legislation

  1. On acquiring the option from Bob, Carole must pay duty on the $200,000 paid for the option. The amount of duty payable is $5,500.
  2. On exercising the option to purchase the land for $2 Million, Carole must pay duty calculated on the total of $2 Million for the land price plus $200,000 for the option) less the duty paid on acquiring the option. Duty on $2.2 Million is $106,500 less the $5,500 already paid leaves a balance payable of $101,000. So the total duty paid by Carole will be $106,500.

Other effects of the new legislation

The grossing up/credit given formula results in a higher tax liability than if duty was paid on the land price with no grossing up or credit because the gross up is taxed at a higher marginal rate (being added onto the purchase price).  For example, duty of $95,500 is payable on the land price of $2 Million and adding the $5,500 paid for the option leaves a total duty payable of  $101,000.

[Rates are those published on the website of the Office of State Revenue on 8 August 2014.]

Effect of new legislation on put options

One uncertainty is the stamp duty payable on the exercise of a put option. The new legislation imposes the new formula “in respect of a transfer of land in New South Wales that occurs as a consequence of the exercise of an option to purchase land [emphasis added].

Is a put option an “option to purchase”? If not then the duty payable by a purchaser under a contract for sale created by the exercise of a put option would be calculated in the normal conveyancing manner so in certain circumstances the landowner might be encouraged to exercise their put option in order to a achieve a better tax outcome for the purchaser.

In any event, those dealing in options should factor in the cost of stamp duty when selling call options.

For further information, please contact Andrew Kleiman.

This publication is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. The publication reflects the law at the date the publication was written which may differ at the date the publication is being read. No reader should act on the basis of any matter contained in this publication without first obtaining specific professional advice.

Andrew KleimanStamp duty on sales of options over land

Tenants don’t get what they deserve, they get what they negotiate

by Andrew Kleiman on 17 July 2014 No comments

This article focuses on the importance of commercial leasing proposals (also called “heads of terms” or “heads of agreement”).   The take-away points for tenants are:

  1. Tenants have the strongest negotiating position at the leasing proposal stage before the lease is issued.
  1. Tenants should take advice from a lawyer or an independent leasing agent (not the landlord’s agent) before signing a leasing proposal or heads of terms to take a lease. Happy
  1. Tenants should do their homework and research current market rentals on the internet or ask an independent leasing agent (but not the landlord’s agent) on current rentals and lease incentives achievable in the market. Agents often publish market research on their websites.

Sounds like common-sense? In our experience most small or medium sized businesses do nothing of the sort. They negotiate the leasing proposal themselves and risk paying more than they have to for a lease for two reasons:

  1. Most, if not all, of the major cost items are decided in the leasing proposal such as rent, outgoings, lease incentives, fitout, repairs, upgrades or capital works, make good and lease security.
  1. Landlords and their agents are in the business of leasing property; tenants are not. So who do you think comes off better in the negotiations?

Occasionally, leasing proposals can be legally binding and even if they are not it may be commercially difficult to resile from them. If the tenant makes a mistake or misses something out then the landlord will resist the tenant’s attempts to set things right in the lease when it impacts on the landlord’s bottom line.

Some of this is due to the vested interests of the landlord’s agent or lawyers. From the agent’s point of view, the deal has been done and the sooner the lease is signed, the sooner they get paid. The landlord’s lawyers view their role as minimising changes to the lease they have drafted.

So the landlord (or their agent or lawyer) will say something like,

This is our standard form lease. If you wanted these changes to the lease then you should have negotiated for them in the leasing proposal.  A deal is a deal and now it is too late.”

Most likely, the tenant will have paid a holding deposit on terms that the landlord will have the right to deduct its legal costs in relation to the preparation of the lease from the deposit before refunding the balance if the tenant pulls out after the lease has been issued.

It’s unfair but in business you don’t get what you deserve, you get what you negotiate.

It is even harder for tenants of premises in large multi-let buildings owned by institutional landlords such as listed property trusts or super funds where a hierarchical decision-making process reduces the landlord’s flexibility in agreeing to changes to the lease, you are just one tenant among many and the landlord gains substantial cost savings in lease administration if all the leases are more or less identical (other than the rent payable and the lease duration).

All of this means that tenants enjoy the strongest negotiating position at the leasing proposal stage before they make any commitment and that is when they should seek legal and rental advice.

One last point, a good leasing proposal or heads of terms should always state that the parties do not intend the leasing proposal to create legally binding relations between the landlord and tenant and that any agreement is subject to a deed of lease being signed by both parties.  Otherwise, the parties may find they are bound by the terms of the leasing proposal even if a lease is never signed. There may be circumstances in which that outcome is strategically desirable depending on what the proposal states. Legal advice should always be sought on this point.

Andrew Kleiman, Legal Practitioner Director

Andrew KleimanTenants don’t get what they deserve, they get what they negotiate

Tips for online retailers leasing warehouse space

by Andrew Kleiman on 11 July 2014 No comments

Tips for online retailers leasing warehouse space

If you are a growing online retailer, the decision to directly lease warehouse space instead of using a 3PL (third party logistics supplier) requires careful thought and planning.  It’s time-consuming enough to manage the complex logistics of storage, packaging, inventory management, distribution and transportation without being a property expert as well.

This article focuses on leasing warehouse space in and around the Greater Sydney Region from a property perspective.  Although aimed at online retailers, it’s useful for anyone leasing warehouse space for storage or distribution in Sydney. The article assumes a tenant is leasing the whole of a warehouse.

Andrew KleimanTips for online retailers leasing warehouse space

Liquidators of landlords can terminate leases

by Andrew Kleiman on 8 July 2014 No comments

Liquidators of insolvent landlord companies can terminate commercial leases on their property, evict the tenants and sell the land with vacant possession.

In what has become known as the ‘Willmott Growers’ case, the High Court held in December last year that a liquidator of an insolvent landlord company could disclaim (i.e. terminate) leases granted by the landlord. Before this case, the general view was that only the liquidators of an insolvent tenant could terminate the lease because the lease was the property of the tenant and not the landlord.

Andrew KleimanLiquidators of landlords can terminate leases

Sydney property trends in 2014

by Andrew Kleiman on 26 June 2014 No comments

In early 2014 Colliers reported leasing in all sectors was expected to improve over 2014 with increased demand for business premises across office, retail and industrial and investment property. Highlights of the agency’s 2014 property outlook included:

  • Office leasing enquiries in Sydney increased by 54% in 2013.
  • Industrial leasing is being driven by logistic operators and developers are building large footprint warehouses on a speculative basis to accommodate them. Tenants of these warehouses can negotiate generous incentives.  Supply of smaller properties (less than 5,000 sqm) is scarcer. SMSF’s are looking for well maintained assets with minimal, short-term capital expenditure.
  • In retail leasing, food retailing is supporting rental growth in shopping centres.
  • On the development front, conversions of commercial office buildings to apartments and hotels with a total of 102,121m² of office space earmarked for conversion to residential in Sydney.
  • Residential property prices increased 11.6% in 2013 and growth is expected to continue but not at such high levels.
Andrew KleimanSydney property trends in 2014