Main Residence CGT Exemption - New Law Excludes Australian Expatriates
Background
The "main residence exemption" provides Australian taxpayers with an exemption from capital gains tax (CGT) where their property is, or has been, their family home, subject to meeting certain criteria. These provisions mean that capital gains made in relation to a qualifying main residence are currently exempt from Australian CGT; and that this exemption applies perpetually to properties that were never rented out, and for a further period of six years from when a property was rented out - this is called the "six year rule". The exemption only applies where there is no other property nominated as a main residence and, when a property is re-occupied as a main residence, the six-year exemption period "resets".
We have been regularly asked by expats whether the Covid 19 pandemic, and the difficulties it poses for selling Australian properties, might result in a deferral of the changes, outlined below, which would limit the ability of Australian expats to claim the main residence exemption. Our response has always been that we saw little likelihood of this occurring, with the Government strangely committed to this inequitable piece of legislation and with expats having little electoral leverage. Our view was confirmed in a statement made to the ABC by the Assistant Treasurer, Michael Sukkar, on April 28 who indicated there would not be an extension and said, "A very reasonable grandfathering arrangement was put in place for foreign tax residents, and by June 30, 2020 they will have had over 37 months to dispose of their property and still been able to access the exemption." |
New Legislation: October 2019
On Wednesday, October 23, 2019 the Assistant Treasurer re-introduced legislation to:
"remove the entitlement to the CGT main residence exemption for foreign residents other than where certain life events occur during the period that a person is a foreign resident where that period is six years or less" |
This follows a previous Bill, which sought to deny the CGT main residence exemption to non-residents, including Australian expatriates, having officially lapsed on July 1, 2019. The previous legislation would have seen the proposed changes come into effect on 1 July 2019 - the new legislation has a new effective date of July 1, 2020.
The Bill passed the House of Representatives on Wednesday, November 27, the Senate on December 5 and received Royal Assent, becoming law, on December 12, 2019. As a member of the Australian Tax Institute was quoted as saying, "There is no legitimate policy reason for denying Australian citizens the CGT main residence exemption in these circumstances", but nevertheless many Australian expatriates will be denied access to the CGT exemption from 1 July 2020. It is also unavoidable that many expats will sell properties unaware of these changes, with significant financial implications, while foreign expats resident in Australia on short term posting will retain access to the exemption.
A Summary of the Legislation
The Bill was accompanied by an Explanatory Memorandum (EM), and it summarises some of the key features and impacts of the proposed legislation as follows - and note that the potentially significant impact they can have on an Australian estate where the deceased is a non-resident, or a beneficiary is a non-resident.
New Law |
Current Law |
Main residence exemption — Individuals |
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Generally, individuals who are foreign residents at the time a CGT event occurs to a dwelling (or for a compulsory acquisition, a part of a dwelling) in which they have an ownership interest are not entitled to the CGT main residence exemption. However, individuals who have been foreign residents for a period of six years or less may be able to access the CGT main residence exemption if, during the period of that foreign residency, certain "life events" occurred. |
Individuals who are foreign residents are entitled to the CGT main residence exemption in the same way as individuals who are residents of Australia for taxation purposes. |
Main residence exemption — Deceased is foreign resident at time of death |
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A trustee of a deceased estate is not entitled to the CGT main residence exemption in respect of an ownership interest in a dwelling of a deceased individual if the deceased was an excluded foreign resident at the time of death. A beneficiary of a deceased estate is not entitled to the portion of the CGT main residence exemption in respect of an ownership interest in a dwelling of a deceased individual if the deceased was an excluded foreign resident at the time of death. |
A trustee of a deceased estate is entitled to the CGT main residence exemption in respect of an ownership interest in a dwelling of a deceased individual who was a foreign resident at the time of death in the same way as if the deceased had been a resident at that time.A beneficiary of a deceased estate is entitled to the CGT main residence exemption in respect of an ownership interest in a dwelling of a deceased individual who was a foreign resident at the time of death in the same way as if the deceased had been a resident at that time. |
Main residence exemption — Beneficiary of deceased estate is a foreign resident |
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A beneficiary of a deceased estate is entitled to the portion of the CGT main residence exemption in respect of an ownership interest in a dwelling of a deceased individual if the deceased was not an excluded foreign resident at the time of death. This applies even if the beneficiary is a foreign resident at the time a CGT event occurs to the dwelling. However, the beneficiary is denied any additional component of the main residence exemption that they are otherwise entitled to it in their own right if they are a foreign resident at the time a CGT event occurs to the dwelling. |
A beneficiary of a deceased estate is entitled to the CGT main residence exemption in respect of an ownership interest in a dwelling of a deceased individual if the beneficiary is a foreign resident in the same way as individuals who are residents of Australia for taxation purposes. |
Just to summarise the main aspects of the legislation:
- Individuals who sell their main residence and who were foreign residents at the time of disposal will not be entitled to the main residence exemption - this includes Australian citizens or permanent residents living overseas who were non-residents
- For individuals, the date of the disposal of their interest in a property will generally be the time a contract for sale was entered into.
- The Bill does not provide for any "apportionment" of the main residence exemption. This means that any days the dwelling had been owned as an Australian resident for Australian taxation purposes would be irrelevant in calculating any CGT liability,
- The new legislation provides that a foreign resident may - unless they have been a foreign resident for more than 6 years - nevertheless be able to access the CGT main residence exemption if they satisfy the ‘life events test’ - applicable events include terminal illness, death and divorce.
We are unconvinced regarding the "life events test", and consider that it may be a political "sop", which will pose a number of practical problems and inequities. An example of how it is intended to apply is contained within the EM below:
Example 1.8 - Main residence exemption – life events test Joan acquired a dwelling on 7 February 2015, moving into it with her spouse John and establishing it as their main residence as soon as it was first practicable to do so. Joan and John are residents of Australia at the time of the purchase of the property. In 2020 they retire to live in the Bahamas and acquire a new residence there. They become foreign residents at this time.They rent out their former Australian residence after they leave Australia and it is not maintained as their main residence in the rental period. In 2021 John dies and Joan decides to sell their former residence. As Joan has been a foreign resident for less than six years at the time of entering into the CGT event for the sale and her spouse has passed away during the period of her foreign residency, she is entitled to a partial main residence exemption for the sale of the residence based on the period that it was her main residence. |
Clear Inequities
In effect, the timing of any sale would be a crucial concern, and to illustrate just how inequitable and extreme those timing issues could be, consider Example 1.2 provided in the Explanatory Memorandum below - and note that this Example is almost a complete copy of that which accompanied the original legislation nearly 2 years ago.
Example 1.2 - Main residence exemption denied Vicki acquired a dwelling in Australia on 10 September 2010, moving into it and establishing it as her main residence as soon as it was first practicable to do so. On 1 July 2018 Vicki vacated the dwelling and moved to New York. Vicki rented the dwelling out while she tried to sell it. On 15October2020Vicki finally signs a contract to sell the dwelling with settlement occurring on13 November 2020. Vicki was a foreign resident for taxation purposes on 15 October 2020. The time of CGT event A1 for the sale of the dwelling is the time the contract for sale was signed, that is 15 October 2020. As Vicki was a foreign resident at that time she is not entitled to the main residence exemption in respect of her ownership interest in the dwelling. Note: This outcome is not affected by
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This example demonstrates that the Government remains comfortable with policies which introduce significant "cliff" effects, and to blithely penalise individuals who move internationally rather than domestically for work or personal reasons. The cost impact of this policy can be very substantial, and in an effort to attach some figures to the impact we provide some indicative figures in the download we prepared for the previous legislation, and which still remains relevant: "Vicki has a Major Tax Problem". Remember in this context that any capital gain which occurs whilst you are non-resident will attract "non-resident" tax rates - which start at 32.5% with no tax free allowance.
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And what about the option of simply returning to Australia, re-establishing yourself as a resident, and then selling the property - and thereby qualifying for the main residence exemption? Rather extraordinarily, Paragraph 1.24 of the Explanatory Memorandum to the Act indicates that the general anti-avoidance rules in Part IVA may apply to arrangements that have, "been entered into by a person for the sole or dominant purpose of enabling that person or another person to obtain the [main residence exemption]". How this would apply in practice is hard to understand; there is no prescribed period that an individual would need to return to Australia in order to re-establish residency, it is determined on the facts. |
Going Forward
We have always supported the continued investment by Australian expatriates in Australian residential property because it represents both a hedge against movements in the local Australian real estate market and adverse currency movements. These proposed recent changes, together with the withdrawal of the 50% CGT discount for non-residents in 2012, will however significantly impact any analysis of whether property should continue to be held in Australia.
For expats aged 65 years of age and over selling their Australian main residence, remember that it has been possible since June 30, 2018 to make "downsizer" contributions of up to $300,000 each into superannuation - subject to meeting certain eligibility requirements. This may introduce significant flexibility in a very small number of situations, given recent restrictions on making super non-concessional contributions.
In summary, the Government effectively continues to support domestic mobility, and the position of temporary residents, while penalising international mobility for its own citizens. It is quite obvious that all the major parties continue to work on the basis that there are "no votes" in the Australian expatriate community. From a practical perspective, all the Australian expatriates maintaining a main residence property in Australia should consider their position in detail regarding the disposal, or otherwise, of this property, in concert with their tax advisor, well in advance of June 30, 2020 - and no sale should be made after this date without comprehensive tax advice.
