Issuu on Google+

Paul Anderson | April 2012 | Corporate & Commercial

The Office of State Revenue has released a new Ruling in relation to the principal place of residence exemption for Land Tax purposes.

Who does this impact? Any persons liable to pay land tax and their advisers.

What action should be taken?

TurkAlert

Land tax and principal place of residence exemption

All relevant parties need to be aware of the terms of the Ruling. The Office of State Revenue has released a new Ruling LT82v2 which collects and clarifies a number of issues involving the Principal Place of Residence Exemption for land tax purposes. The Ruling takes effect from 13 March 2012.

Background Section 10(1) of the Land Tax Management Act 1956 sets out numerous instances of land that is exempt from land tax. Subsection (i) specifies land that is “exempt from taxation under the principal place of residence exemption as provided for in Schedule 1A”. “Principal place of residence” or PPR is defined in section 3 as the “one place of residence of a person, whether within or outside of Australia, that is the principal place of residence of that person.” The term “owner” includes joint owner, any one of whom may occupy the land as his or her principal residence. The exemption applies to a parcel of residential land or strata lot that is used and occupied as the principal place of residence of the owner of the land and for no other purpose except as specified in clauses 4 and 5 of schedule 1A as dealt with below.

1


Use and occupation The owner must have continually used and occupied the land for residential purposes since 1 July in the year preceding the relevant taxing date, ie 31 December. The “use” means actual use and not proposed use. If the land has been purchased after 1 July, the exemption will be allowed if the Chief Commissioner is satisfied that the land is used and occupied as the principal place of residence of the owner on the relevant taxing date. Generally, if the exemption applies, it applies for the benefit of all owners, ie. other joint owners will also receive the benefit of the exemption. However, the exemption cannot apply if a joint owner is a company or a trustee of a Special Trust, even if another joint owner satisfies the eligibility requirements.

Residential land Under clause 3, “residential land” means the site of a building or buildings designed, constructed or adapted for residential purposes. A caravan situated on land does not constitute a “building” for the purposes of the PPR exemption. However, land containing a permanent structure will qualify provided it “includes a kitchen, bathroom and toilet facilities”.

Tenants Under clause 4, land is still entitled to the PPR exemption if part of it is occupied by tenants, provided that the relevant parts satisfy the definition of “excluded residential tenancy”, namely the rented part must consist of one of the following combinations of no more than two separate tenancies or lettings: >> one flat plus another room or suite of rooms that is not a self-contained flat; or >> no more than two rooms, separately occupied by boarders or lodgers.

A bed and breakfast can retain the PPR exemption provided that the guest accommodation is limited to the above permitted occupancies.

Incidental business use Under Clause 5, an owner of land may use one room of the residence for incidental business purposes and derive income from its use and still retain the PPR exemption. The business must be primarily conducted elsewhere. The Ruling gives as an example, a plumber who uses a shed to store equipment or an accountant who uses his study to see clients after hours. If the owner conducts the business primarily from home, a concession to reduce the taxable value of the land is available under section 9C and 9D of the Act.

TurkAlert

Land tax and principal place of residence exemption Paul Anderson | April 2012

Vacant land Under Clause 6, the PPR exemption can extend to unoccupied land if the owner intends to occupy the land as his or her principal residence at the completion of proposed building works. The exemption extends to an existing building to be renovated or demolished and rebuilt. The exemption applies for up to four years from purchase of the land which is an increase on the period of two years that applied in the 2010 and earlier land tax years. After the building works have been completed, at least one of the owners must use and occupy the building for his or her principal residence for at least six months. The concession cannot apply if the owner or any member of the owner’s family as defined in Clause 12, is entitled to claim the PPR exemption for another residence.

Sale of former PPR Under Clause 7, the PPR exemption may apply to two houses where the owner has purchased a new house but has not sold the previous house by the relevant taxing date, ie. 31 December.

2


Both houses will be exempt for the same tax year if the following conditions are satisfied: >> The former house was the owner’s exempt residence on the taxing date or the previous taxing date and the owner intends to dispose of it within 6 months of the taxing date; and >> The new house was acquired within the period of 6 months preceding the taxing date and on the taxing date, it is intended to be used and occupied as the owner’s principal place of residence. The former house should be disposed of by 30 June following the relevant taxing date but an extension of time may be granted by the Chief Commissioner. The Ruling gives the following example: >> A person purchased a new home in October 2011 and sold his former home in March 2012. Both homes are exempt for the 2012 tax year, regardless of which one was used and occupied on 31 December 2011.

Concession for absences from PPR Under Clause 8, an owner may be absent from the exempt residence for up to 6 years and retain the exemption. The exemption ceases and the land becomes liable for land tax after 6 years. During the absence, the owner must use and occupy another place of residence which is not owned by that person. From 2007, the 6 year limit does not apply to an owner who is in full time care. The term “full time care” is classified as any period during which the owner:

>> resides at a hospital or mental hospital as a patient or resides at an Aged Care establishment while being provided with residential care or respite care; or >> resides with a carer who is eligible for a carer payment under the Social Security Act 1991. The concession does not apply to the former residence of a person who lives in a retirement village unit owned by the person. During the period of absence, income may be derived from letting the home provided that the period of such lettings does not exceed 6 months in the calendar year preceding the taxing date. For longer periods, the land will become liable for land tax unless the rental income is no more than is required to cover the cost of regular outgoings such as Council, Water and Energy Rates and maintenance costs (that is, excluding mortgage payments). “Maintenance“ does not include substantial repairs such as repainting, replacement of a water heater or refurbishing a kitchen or bathroom.

TurkAlert

Land tax and principal place of residence exemption Paul Anderson | April 2012

Death of owner Under Clause 9, the PPR exemption continues up to 2 years after death. This is an increase on the period of 12 months which applied for the 2010 and earlier land tax years.

Concession for first home owners Generally, the PPR exemption does not apply to land owned jointly by a company or a trustee of a special trust. However, under clause 10A a first home owner who purchases a principal place of residence with a shared equity partner will be entitled to the exemption. Where the shared equity partner is a natural person, the land will be fully exempt. However, if the shared equity partner is a company or a trustee of a Special Trust, that partner will be liable for land tax on its proportion of its interest in the land.

3


Multiple occupancies Where the land is the site of two or more flats, one of which is a principal place of residence, section 9C provides a proportionate concession for the flat which is the principal place of residence. However, as indicated above, the land may be wholly exempt if there are only two flats and the PPR concession for excluded occupancy applies to the second flat.

Company and trustees If the land is owned by a company or trustee of a Special Trust or the company or Special Trust is a joint owner, the land is not entitled to the PPR exemption. For example, if the company is a family company and a director occupies the residence on the land, or if a company acts as trustee for natural persons who occupy the residence, the land will not be exempt. If the owner of the land is a Special Trust, the land will not be exempt because beneficiaries of the Trust occupy the land. However, if the land is owned by the trustee of a Fixed Trust, the exemption will apply if the residence is occupied by a person beneficially entitled to the land under the terms of the Trust but not if the trustee also occupies the residence. There is also a further exemption if a company is a trustee of a “Concessional Trust� as defined in Section 3B which includes Special Disability Trusts.

Members of one family The exemption is only available for only one place of residence owned by members of a family. If two or more members of the same family have different PPRs, the owners may elect the residence as to which the exemption is to apply. A family is defined as a person and his or her spouse, married or de facto, together with all dependent children or stepchildren who reside with them.

If the parties have separated and they have no intention of resuming cohabitation, both the person and his or her spouse may qualify for the PPR exemption for their respective PPRs.

Two or more lots The exemption may apply to a parcel of residential land consisting of two or more lots provided: >> the lots are adjoining; >> they are owned by the same person or persons; and >> the land is the site of a single residence.

TurkAlert

Land tax and principal place of residence exemption Paul Anderson | April 2012

Where separate buildings are erected on the separate lots, they will not be regarded as a single residence if each building is capable of separate occupation. When determining whether two or more lots are the site of a single residence, consideration will be given as to whether or not the lots have the appearance of a single integrated residence. In this regard, the lots must be adjoining but may be divided by a fence, wall or other structure. However, access must be readily available between the lots by way of a gate, door, steps, stile, elevator, opening or other similar means.

Two or more strata lots Under Clause 14, the PPR exemption may apply to two 2 or more residential strata lots used together as a single residence provided: >> the lots have adjoining walls or floors; >> the lots are owned by the same person or persons; >> the lots comprise a single residence; and >> there is internal access between the lots such as an interconnecting door, an internal staircase or a connecting balcony. The requirement for internal access does not apply to parking or storage lots which are ancillary to the residential lots.

4


Land tax and principal place of residence exemption Paul Anderson | April 2012

TurkAlert

Mixed use Under sections 9C and 9D of the Act, there is a concession for mixed use land and mixed development land where land is partly used for the owner’s principal place of residence and is partly used for other non-exempt purposes. The allowable proportion is the proportion of the land attributable to the exempt residence. The concession for mixed development land applies where the land is partly used as the owner’s residence and partly used for other purposes, such as where the property contains the owner’s PPR plus two or more rented flats or a shop or business. The concession for mixed use land applies where land is partly used for residential purposes and partly used for non-residential purposes but there are no buildings or parts of buildings on the land which are separately used for non-residential use. An example is land which is partly used for a tennis coaching or hire centre as well as being occupied as a principal place of residence.

Conclusion The new Ruling should be a first port of call for anyone coming to grips with the PPR exemption for the first time or faced with an unusual set of facts in determining whether the PPR applies in whole or in part. It is both detailed and wide ranging in the circumstances it deals with.

For more information, please contact: Paul Anderson Partner T: 02 8257 5742 M: 0418 491 395 paul.anderson@turkslegal.com.au

www.turkslegal.com.au Syd | Lvl 29 Angel Place, 123 Pitt St, NSW 2000 T: 02 8257 5700 | F: 02 9239 0922 Melb | Lvl 10 North Tower, 459 Collins St, VIC 3000 T: 03 8600 5000 | F: 03 8600 5099 5


Land tax and principal place of residence exemption