Will lawyers become the new tax collectors?

By Emma Ryan|30 May 2017

The new financial year is set to bring a legislation change which will mean lawyers and conveyancers could be given “extended powers” as they take on the role of tax collector during the property settlement process, according to a CEO.

From 1 July, changes to legislation will limit the capital gains tax (CGT) exemptions available to foreign and temporary residents and increase withholding rates for foreign tax residents.

GlobalX chief executive officer Peter Maloney (pictured below) said that the process will involve lawyers and conveyancers acting as “tax collectors, ensuring that money from property sales is withheld during the settlement process and paid to the Australian Tax Office (ATO) when required”.

“Currently, all property transactions worth more than $2 million require 10 per cent of the purchase price to be withheld and transferred to the ATO,” Mr Maloney said.


“The only way to avoid this tax is for a vendor to obtain a Clearance Certificate that states they are not a foreign resident.

“With these changes lowering the property value threshold from $2 million to $750,000, more lawyers and conveyancers than ever before will be burdened with this administrative process.”

According to Mr Maloney, the increase from a 10 per cent tax of the purchase price to 12.5 per cent means that transactions would involve greater sums of money, with the measures expected to raise an estimated $581.0 million in tax revenue.

“Lawyers and conveyancers will play a crucial role in these high-value transactions and are essentially collecting revenue for the government,” he said.

“In the absence of a public awareness campaign by federal government, it is being left up to legal professionals to advise their clients of the withholding threshold and the importance of obtaining a Certificate of Clearance.


“As well as the added responsibility that comes with this, the new process will create more red tape and paperwork for lawyers, conveyancers and their clients.”

As an example, Mr Maloney said that GlobalX estimates that only 11 per cent of Australian properties are caught in the $2 million threshold. He noted that lowering it to $750,000 will now burden 64 per cent of properties.

In addition, Mr Maloney said his business’ review of last weekend’s auction results in Sydney demonstrate that only 44 out of 836 properties have been sold for less than $750,000.

“Australians will not understand why they require a Clearance Certificate, and while all other parts of the property value chain are being digitised, this tax raising compliance exercise means more time will be spent on settlements and even increased costs for buyers and sellers,” Mr Maloney said.

Also commenting on the issue is Australian Institute of Conveyancers president Santina Taranto who said that those who plan to buy or sell property in the new financial year should listen closely to the advice of their lawyer or conveyancer and obtain a Clearance Certificate if they are not a foreign resident.

“If you fail to obtain a Clearance Certificate, even if you are an Australian resident, you will be treated as a foreign resident. It’s really a situation of ‘foreign’ until proven otherwise,” Ms Taranto said.

“That means the money withheld during settlement will be paid to the ATO and the vendor will not receive the full payment for the property.

“In most cases, you can expect to receive a Clearance Certificate in less than a fortnight. However, in case there are complications, buyers should apply for the certificate immediately to avoid missing out on their dream home.”

Will lawyers become the new tax collectors?
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