Frequently Asked Questions

Is the foreign ownership surcharge payable on acquiring an interest in residential land?

The foreign ownership surcharge applies to an acquisition of residential land which is otherwise liable to duty. This includes:

  • “Every day” transfer of land
  • Off the plan apartment
  • Vesting of an interest in unit subsidiary
  • Transfer of leasehold interest
  • Assignment of interest in a contract
  • Easement
  • Option to purchase

If the transfer to the foreign person is exempt from duty then the foreign ownership surcharge does not apply.

If a foreign person is married to an Australian citizen are they exempt?

No. The foreign ownership surcharge applies to the value of the interest acquired by the foreign person.

Is there list of permanent visas subclass from the Immigration Department?

There is a summary list of all visas available, though it does not show which visas are permanent and which visas are temporary.

For specific information, go to https://www.homeaffairs.gov.au/trav/visa-1/visa-listing and search for the visa on the webpage. Then read the visa description to see if this is a permanent visa or a temporary visa.

If a foreign person who acquires residential land is subsequently granted a permanent visa within one year of the settle date of the residential land, can a refund of the foreign ownership surcharge apply?

The foreign person can apply to RevenueSA for a refund of the foreign ownership surcharge if the person ceases to be a foreign person not more than 12 months after the acquisition of the interest. See Section 72(5) of the Stamp Duties Act 1923.  

A refund form is available from the Stamp Duty forms page on the RevenueSA website.

If a non-foreign person becomes a foreign person within three years, is it their responsibility to advise RevenueSA of their change in status and, if so, how would they know to do that?

If within 3 years of the acquisition of the interest in residential land the acquirer becomes a foreign person (being either a natural person or company) or foreign trust, the Commissioner must be notified in writing within 28 days of becoming foreign.

The onus is on the acquirer to notify the Commissioner in writing within 28 days of becoming foreign.

Does the three year time period for a person changing from non-foreign to foreign start from 1 January 2018 or does it start from a later date?

The period starts from the date of acquisition of the property i.e. the settlement date.

If a foreign person acquires a 1% interest in land is the foreign ownership surcharge calculated on 1% of the purchase price?

Yes, the foreign ownership surcharge applies on the interest of 1% acquired by the foreign person.

Is the surcharge calculated on the GST payable on the land?

Foreign ownership surcharge is taken to be duty payable on an instrument. If GST is payable on the land, then duty and the foreign ownership surcharge are payable on the GST inclusive amount.

Does the foreign ownership surcharge apply to transfers of entitlements under a community plan (i.e. Carpark entitlements to a residential apartment)?

Yes. This is considered to be within the definition of residential land.

Is a Licence to Occupy residential land prior to settlement acquiring an interest in land? For example, a purchaser pays the purchase price for the property but delays signing a Transfer, paying stamp duty or lodging anything with the Lands Titles Office until Australian residency is acquired (say in 18 months) and in the interim occupies the residential land under licence. Does the foreign ownership surcharge apply?

If a purchase price has been paid, an interest in residential land has been acquired by the foreign person, such that duty and the foreign ownership surcharge are payable. If no Transfer has been executed to stamp, then Section 71E of the Act applies (‘transfers otherwise than by dutiable instrument). A Section 71E Statement, including the duty for the foreign ownership surcharge, must be lodged and stamped.  This can be stamped on RevenueSA Online.

A Licence to Occupy or a Caveat in this scenario will not negate the requirement for a Section 71E statement.

Does the foreign ownership surcharge apply to Licence to Occupy transactions (e.g. Fisherman Bay)?

Where the licence relates to residential land, the Foreign Ownership Surcharge will apply.

Can I execute the transfer a few months early before the settlement happens?

The foreign ownership surcharge applies to a dutiable instrument executed on or after 1 January 2018. Whether a transfer is executed (and stamped) prior to settlement does not affect the foreign ownership surcharge liability.

If a contract is made that predates the effective date of the foreign ownership surcharge legislation, e.g. for an Off the Plan development where the contract is executed in 2016 with settlement anticipated to be 2017, and there are delays in construction/practical completion (through no fault of the purchaser) so that settlement takes place after 1 January 2018, is there any duty relief available to the purchaser?

The foreign ownership surcharge applies. The Commissioner of State Taxation has no discretion to waive the foreign ownership surcharge.

Is there an option to obtain RevenueSA’s opinion if a person/ trust or company is defined as foreign like opinion stamping?

Yes. The foreign ownership surcharge can either be determined on RevenueSA Online or the instrument submitted for opinion assessment if required.

Can you amend a discretionary trust deed to exclude as an object a person who is a foreign person without causing a resettlement of the trust?

A discretionary trust will only be a foreign trust for the purposes of the foreign ownership surcharge where one or more of the following is a foreign person:

  • a trustee;
  • a person who has the power to appoint under the trust;
  • an identified object under the trust; and
  • a person who takes capital of the trust property in default.

Providing none of the above are foreign persons, a discretionary trust will not be a foreign trust and the trust deed would not need to be amended.

In addition, with regards to an identified object under the trust, the object must be identified in the trust deed by name in order for a trust to be a foreign trust. The term ‘identified as an object’ is not a blanket reference to a class or range of beneficiaries under a discretionary trust deed who are not identified by name. Also, changing the trustee, a person who has the power to appoint under the trust or a person who takes capital of the trust property in default would not cause a dutiable resettlement of the trust.

Section 71(5)(g) provides an exemption from duty for discretionary trusts created wholly or principally for the benefit of a family group where a natural person object renounces or surrenders their interest in a discretionary trust and another member of the family group is to continue as an object.

With a standard Family Discretionary Trust, the specified beneficiary will be named and then include a range of a class of family members, e.g. children, grandchildren, future spouses etc., If any of these class of persons are foreign persons, is this considered as a foreign trust?

If the identified or named beneficiary is a foreign person then the trust is considered a foreign trust and the foreign ownership surcharge will apply. If an unnamed person who is a foreign person is within a class of family members, this is not considered when determining if the foreign ownership surcharge applies.

Assume Australian Company A acquires land in February 2018 and pays no foreign ownership surcharge. Foreign Company B acquires a 50% interest in Company A in December 2018. What foreign ownership surcharge is payable?

RevenueSA’s Foreign Ownership Surcharge page provides a detailed example (search for “Local2Global Pty Ltd”) which addresses what foreign ownership surcharge is payable in the above example.

In summary, by virtue of Foreign Company B acquiring a 50% interest in Company A (a land holding entity), Company A becomes a foreign person (person includes companies) within 3 years of the acquisition of the residential land in February 2018.

As such, both landholder duty and the foreign ownership surcharge are payable on the 50% landholder acquisition (by Company B). Whilst foreign ownership surcharge is also payable on the full value of the February 2018 land acquisition (by Company A), the amount payable is reduced (with the reduction in essence being a rebate) by the foreign ownership surcharge paid in respect of the landholder acquisition.

How will RevenueSA monitor if a company becomes a foreign company within three years of purchasing a property?

RevenueSA’s Compliance Services branch obtains information from various sources, including the ATO, ASIC, FIRB, the Department of Home Affairs, the Department of Immigration and Border Protection. Such information can be used to identify potential tax defaults.

The onus is on the foreign person (which includes a company) to notify the Commissioner of State Taxation in writing of becoming a foreign person or foreign trust within 28 days of becoming foreign.

When a foreign person (the Purchaser) signs a contract but representative (e.g. Attorney, by deposited Power of Attorney) provides the VOI and Client Authorisation without any Visa/Passport information on the purchaser, how is information fields required for the Commonwealth Reporting of the Purchaser’s information (which in turn triggers the Foreign Resident Surcharge) to be completed?

You will need to request the relevant information about the purchaser (not the Attorney).

Is there other forms of evidence to satisfy the permanent resident status apart from a permanent visa for clients who do not hold a passport, either Australian or foreign, such as Medicare card (the criteria as per the Health Services website)?

It is a requirement that the person is a holder of a permanent visa within the meaning of Section 30(1) of the Migration Act 1958 (Cwlth). This can be ascertained by the particular visa number.

The Department of Home Affairs may be able to assist with enquiries on visa status.