New exemptions and refunds for surcharge purchaser duty and surcharge land tax in New South Wales were introduced last year, and our lawyers have had hands-on experience with the operation of this regime. Here, Mark Lyons reviews the operation of the scheme and reminds Australian developer companies who are foreign persons that the scheme may provide a significant and timely boost to cash flow.

Background

In March 2018 we published an article about the introduction of the new concessions. Since then the New South Wales government has established an exemption and refund regime for these taxes to encourage the construction of new homes.

Eligibility

An exemption or refund may be available to Australian developer companies who are foreign persons and use the property for—

• construction and sale of new homes, or
• subdivision and sale for new home construction.

Applications for exemptions and refunds must be made in writing to the Chief Commissioner of State Revenue who will assess the application against a variety of criteria and additional eligibility requirements.

Some examples of key assessment criteria include—

• the developer's sale of new homes must not be to an associate of the company
• the developer's past or present involvement in new home construction or the subdivision of land for new home construction
• evidence of the developer's plans for new home construction
• whether finance approval has been obtained, and
• the status of development approvals.

Exemptions

Exemptions may be obtained well before construction has commenced where the Commissioner is satisfied the foreign person is likely to meet the eligibility requirements for a refund.

If the application is approved, Australian developer companies are not required to pay surcharge purchaser duty and surcharge land tax at the time the liability for those items arises.

The Commissioner may approve the Australian developer company for an exemption relating to multiple property acquisitions and multiple tax years.

Refunds

Australian developer companies who have already made payment of surcharge purchaser duty or surcharge land tax can apply for refunds of the taxes paid.

Refunds are also available where the property was acquired before the exemption and refund regime was introduced. This allows developers to apply for refunds for acquisitions which may date back several years to when the surcharges were introduced.

Generally, an application for a refund must be made by the earlier of—

• 12 months after the sale of the new home by the developer or issue of the subdivision certificate, or
• 10 years after the developer completed acquisition of the property.

For acquisitions occurring before 21 June 2016, developers must apply for a refund of surcharge land tax before 21 June 2021.

How can we help?

If you are—

• an Australian developer company who has paid, or may be liable to pay, surcharge purchaser duty or surcharge land tax, or
• in business with foreign entities and looking to acquire property and engage in development activity.

Our Real Estate lawyers can help prepare an application for an exemption or refund of surcharge purchaser duty and surcharge land tax.