Div 9Foreign ownership surcharge

Division 9—Foreign ownership surcharge 72—Surcharge for foreign purchasers of residential land (1) This section applies to a dutiable instrument (including a statement under section 71E) executed, or taken to have been executed, on or after 1 January 2018. (2) If an instrument to which this section applies effects, acknowledges, evidences or records a transaction whereby an interest in residential land is acquired by a foreign person or a person who takes the interest as trustee for a foreign trust, the person is liable to pay a surcharge (a foreign ownership surcharge) to the Commissioner in addition to the duty payable on the instrument. (3) The amount of the foreign ownership surcharge is 7% of the value of the interest acquired by the person in the residential land by virtue of the transaction effected, acknowledged, evidenced or recorded by the dutiable instrument. (4) The foreign ownership surcharge is to be taken for the purposes of this Act to be duty payable on the instrument. (5) If— (a) a foreign ownership surcharge was paid by a person under this section because the person was a foreign person when an interest in residential land was acquired by the person; and (b) the person ceases to be a foreign person not more than 12 months after the acquisition of the interest; and (c) the person retains the interest at the time that the person ceases to be a foreign person, the Commissioner must, on application by the person, refund the amount of the foreign ownership surcharge to the person. (6) If— (a) a foreign ownership surcharge was paid by a person under this section because the person was a trustee for a foreign trust when an interest in residential land was acquired by the person (taking as trustee for the trust); and (b) the trust for which the person is trustee ceases to be a foreign trust not more than 12 months after the acquisition of the interest; and (c) the person retains the interest on behalf of the trust at the time that the trust ceases to be a foreign trust, the Commissioner must, on application by the person, refund the amount of the foreign ownership surcharge to the person. (7) If, not more than 3 years after the acquisition of an interest in residential land effected, acknowledged, evidenced or recorded by an instrument to which this section applies, the person who acquired the interest becomes a foreign person, or, where the interest was acquired by the person taking as trustee, the trust for which the person is trustee becomes a foreign trust, the following provisions apply: (a) subject to paragraph (b)— (i) the person must, within 28 days of becoming a foreign person or the trust becoming a foreign trust, notify the Commissioner in writing of that fact; and (ii) a foreign ownership surcharge is payable on the instrument; and (iii) for the purposes of section 20, the surcharge is to be regarded as having become payable when the person became a foreign person or the trust becomes a foreign trust; and (iv) the person may, at the discretion of the Commissioner, be liable to pay interest and penalty tax as if the failure to pay the surcharge at the date of the acquisition were a tax default under the Taxation Administration Act 1996; (b) paragraph (a) does not apply if— (i) the interest in the residential land was conveyed or transferred by the person or trust before the person or trust became a foreign person or a foreign trust; or (ii) a foreign ownership surcharge has been paid, or is liable to be paid, in respect of the transaction by virtue of which the person or trust became a foreign person or a foreign trust; (c) however, if the person or trust referred to in paragraph (b)(ii) is a corporation or trust that is not a wholly foreign owned corporation or trust— (i) the person is liable to pay a foreign ownership surcharge on the instrument; but (ii) the amount of the foreign ownership surcharge is to be reduced by the amount of the foreign ownership surcharge (if any) paid in respect of the transaction by virtue of which the person or trust became a foreign person or a foreign trust. (8) Land will be taken to be residential land for the purposes of this section if— (a) the Commissioner, after taking into account information provided by the Valuer‑General, determines that it is being predominantly used for residential purposes; or (b) the Commissioner, after taking into account information provided by the Valuer‑General, determines that although the land is not being used for any particular purpose at the relevant time the land should be taken to be used for residential purposes due to improvements that are residential in character having been made to the land; or (c) the Commissioner, after taking into account information provided by the Valuer‑General, determines that the land is vacant, or vacant with only minor improvements, that the land is within a zone established under the planning and development law of this State that envisages the use, or potential use, of the land as residential, and that the land should be taken to be used for residential purposes due to that zoning (subject to the qualification that if the zoning of the land indicates that the land could, in a manner consistent with the planning and development law, be used for some other purpose (other than for primary production) then the vacant land will not be taken to be used for residential purposes). (9) For the purposes of subsection (8), the date that is relevant to a determination as to whether land is residential land is the date of the relevant instrument. (10) In this section— residential land—see subsection (8).