CGT Withholding Regime may affect rural land sales

Rural Conveyancing just got even more difficult for our Rural and Agribusiness clients. From 1 July 2016, Vendors and Purchasers of rural land could be impacted by the new Tax and Superannuation Laws Amendment Bill 2015. 

The new Capital Gains Tax (CGT) Withholding Regime was intended to target foreign sellers of land, but rural land transfers are likely to be affected. The way the new regime will work is as follows:-

Generally, if a Vendor enters into an option or contract to transfer any land or lease of Australian land, the Purchaser will be required to withhold 10% of the purchase price from the settlement funds. This money is then paid to the ATO. The funds are taken on account for the Vendor’s potential CGT liability. The new CGT Withholding Regime will apply, unless there is an exemption.

Exemptions include land or leases with a market value of less than $2,000,000.00 or where a “Clearance Certificate” has been obtained. These days, rural properties are often sold for over $2,000,000.00. It is the Purchaser’s responsibility to make sure that the CGT is withheld and so there are changes in the wind for both Buyers and Sellers.

At this stage, it is a case of “watch this CGT space”, but be aware of the impending change.

Changes to Restricted Land Laws may diminsh Landowner Rights

 On 5 June 2014 the Mineral and Energy Resources (Common Provisions) Bill 2014 was presented to Parliament.  If the Bill becomes law then there will be a variety of amendments to the current laws, which will diminish the rights of Landowners when they are negotiating or dealing with a mining company.

What are the current rights of Landholders in regard to Restricted Land?

At the moment, a Mining Lease can be granted over Land that is "Restricted Land" only if the owner of the land gives consent to the application for the Mining Lease. "Restricted Land" means land that is within 100m of permanent buildings used for accommodation or business, community or recreational buildings. It also means land within 50m of a bore, dam, some water storage facilities, cemeteries or burial places or a principal stockyard.

 Currently, what happens if the Landowner won't give consent?

If a Landowner won't give consent, then the application cannot be granted over the "Restricted Land" areas. A Landowner with a property that had Restricted Land was therefore put in better bargaining position with a Mining Company.

 Are there changes in how Restricted Land is treated if the Bill becomes law?

Yes. The Bill proposes changes in the types of infrastructure used to identify Restricted Land. Only land within a "prescribed distance" of certain types of buildings or infrastructure will be considered as Restricted Land.  At this stage, we do not know whether that "prescribed distance" is going to be the same as under the current law, because the "prescribed distance" is yet to be written into the regulations. The regulations have not been issued yet.

If the Bill becomes new law and I have say a bore, will things change for me if a Mining Lease is applied for?

Yes. The types of infrastructure or buildings that are now considered to be "Restricted Land" are changing.  In the new Bill, Restricted Land will mean land within the prescribed distance of a residence, a place of worship, a childcare centre, hospital or library. It will also include a school, a cemetery or burial place. An area within a prescribed distance of intensive animal feedlotting, pig keeping, poultry farming and aquaculture will become a restricted area. In other words, pretty much only buildings are now protected, and definitely not watering facilities.

 So, under the current system if a Mining Lease was to be applied for over an area where you had a dam or bore, you could withhold your consent and the mining lease would not have been granted over that area. If the bill becomes law, you will not be able to prevent the grant of a mining lease over the area around your dam or bore by withholding consent.

 For further information in relation to these issues, contact Justin Houlihan or Melanie Oliver at Rees R & Sydney Jones on 4927 6333.