Capital Gains Tax

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In their submission to the House of Representatives Standing Committee on Economics, the Australia Institute state not only is current tax treatment putting upward pressure on house prices but are also encouraging speculative behaviour and increasing the chances of property bubbles and financial instability. 
"Negative gearing has been a part of the Australian tax system from early last century. In the context of residential housing investment it allows property investors to write off any losses against their taxable income from other sources. This effectively means that the tax payer is paying for some of the loss. 
"The CGT discount was introduced in 1999 and means that for assets held for more than a year only 50% of the capital gain is taxed. This decreased the amount of CGT paid, and means capital gains become increasingly important to property investment."
The effect of the GCT discount can be seen in the Net rental income table 1995-2013.
<a href="/images/2015/08/26/Screen%20Shot%202015-08-26%20at%202.26.13%20PM.png" target="_blank">Click to enlarge</a>
<img src="/images/2015/08/26/Screen%20Shot%202015-08-26%20at%202.26.13%20PM.png" alt="">
"After the introduction of the CGT discount net rental income collapsed. Investors were willing to take on significantly larger losses at a time when they could keep a larger slice of the capital gain. 
"In a normal investment market if the return on the asset was going down because the price of the asset was rising then this would be a signal to investors that it could be overvalued and would decrease the interest in investing. 
"But an interest in capital gain means that a rising price is a signal to enter the market because future capital gain is likely. Such a situation makes speculative bubbles more likely. 
"While middle and lower income households are being increasingly shut out of home ownership, most of the benefits of negative gearing and the CGT discount flow to high income households. 
"Modelling done by NATSEM for the Australia Institute shows that 55 per cent of the benefits of negative gearing and the CGT discount flow to high income households, while 50% of families only get 13% of the benefit. Figure 3 shows the income distribution of the negative gearing and CGT discount benefits. 
<a href="/images/2015/08/26/Screen%20Shot%202015-08-26%20at%202.28.03%20PM.png" target="_blank">Click to enlarge</a>
<img src="/images/2015/08/26/Screen%20Shot%202015-08-26%20at%202.28.03%20PM.png" alt="">
The Australia Institute does not believe that changes made to negative gearing would decrease investment and increase house prices. AI claims that there is already little investment into property with just six per cent of investment finance going to new housing.
"The other 94% is spent on existing stock. If the objective of negative gearing is to encourage new housing then this could be achieved by restricting negative gearing to apply only to new housing. 
"The Australia Institute proposes that negative gearing is restricted to new housing stock and only for a period of 10 years.
"The CGT discount replaced a system where capital gains were discounted by the inflation rate. The argument for the CGT discount is that it is a simpler method for calculating and taxing the real capital gain. 
"The broader question that should be considered is why we tax real capital gains but level all other taxes on the nominal gain. For example, interest earned on money is taxed at the nominal interest rate rather than the real interest rate. 
"Given that all other taxes are levelled on the nominal gain and not the real gain there is little justification that capital gains should be taxed differently. The Australia Institute proposes that the CGT discount should be abolished. 
"These changes will have a number of effects. It will decrease demand for housing and hence put downward pressure on house prices as potential investors pick other investment opportunities. 
"It creates a bigger incentive for new housing. It reduces the speculation in the residential housing market, making property bubbles and financial instability less likely. Finally it will raise $7.4 billion a year in revenue at a time when the government is trying to decrease the budget deficit."
 
The Australia Institute report outlined the case for abolishing the capital gains tax discount – not capital gains tax as previously headlined.
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jchancellor-FAypfDUnLy

Abolish capital gains tax discount: Australia Institute

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GUEST OBSERVER
The Prime Minister’s statement yesterday that there will be no changes to capital gains tax (CGT) on housing has the full support of the residential building industry. 
New housing is one of the most highly taxed commodities in the Australian economy.
In the lead up to last year’s election there were a range of proposals from reducing CGT on investment properties to applying the tax on the family home. Yesterday’s categorical statement by the government provides continued certainty to the industry and to investors.
The housing industry has opposed changes to the way capital gains are currently treated on investment properties. It would mean investors pay even more tax.
Right now, around two dollars out of every five that an individual pays for a new home is tax. 
Buyers pay those taxes. And then they pay taxes on the taxes. They pay stamp duty on top of taxes, including the GST. And when they eventually sell the property, if they make any money, they pay tax on that. 
Housing cannot be asked to pay even more taxes. It would simply have the opposite effect. 
When it comes to improving housing affordability, the focus should be on increasing supply year on year. This won’t happen by removing the incentives to build new homes and placing pressure on existing housing prices to meet demand.
Graham Wolfe is deputy managing director, HIA, and can be contacted <a href="https://hia.com.au" target="_blank">here</a>.
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PM’s capital gains tax decision the right one: HIA's Graham Wolfe

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GUEST OBSERVER
The issue of negative gearing has roared to the centre of our national political debate.
Last weekend Labor leader Bill Shorten announced major changes to negative gearing and to capital gains tax. The Parliamentary Budget Office estimates that Labor’s policy could raise $32 billion over 10 years.
These are risky changes for our industry and for the economy given they come at a time when growth is so delicately poised.
Major changes to negative gearing and capital gains tax would have far-reaching effects throughout the economy. If enacted, Labor’s policy will distort the market, hit rents, hurt jobs and make it so much harder for families to plan their economic futures – all this without any modelling of its impact on rents, construction levels, jobs or state budgets.
However, it is not only the Opposition that is being tempted by the possibility of big new tax licks.
As yet, we do not have clarity over the Turnbull Government’s position on property taxes. While some frontbenchers and backbenchers have expressed support for the existing system of negative gearing, the Government’s position appears to be fluid.
That’s why the Property Council is putting the case to politicians of all political backgrounds not to damage an industry that supports 1.1 million jobs throughout the economy and generates one ninth of our national income.
Two million Australians own an investment property. Property has always been part of the ‘Australian dream’ and it has been a proven means for Australians on middle incomes to build their wealth.
Playing around with negative gearing policy doesn’t make sense and it’s sure not worth the economic risk.
 
Ken Morrison is the Chief Executive of the Property Council of Australia and can be contacted <a href="https://www.propertycouncil.com.au" target="_blank">here.</a>
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Negative gearing changes not worth the risk: PCA's Ken Morrison

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Hi Margaret,
I was reading about Capital Gains Tax (CGT) on principal residences and I was wondering if CGT is applicable on an elderly parent’s home after they have moved to a nursing home. If the home is rented out to pay for the ongoing expenses of nursing care, is CGT applicable after she has passed and the home is sold? Alternatively, if a family member lives in the home until such time as she passes, is capital gains also applicable?
Presently there is family division (as usual) about the way her assets and home should be managed.
Regards,
Katherine
Margaret Lomas' answer is on the next page. Please click below.
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Capital gains tax is a complicated issue, and I wanted to be sure I got this right for you, so I called my Property Success resident tax expert, Ian Rodrigues, and checked that my understanding around this was correct.
If you own a Principal Place of Residence (PPOR) from which you are absent and you rent it out, you have a six year period where you can have an exemption from CGT, as long as you don’t claim another PPOR exemption. 
If you don’t rent it out, the amount of time that you can claim that exemption is unlimited. This would mean that, as long as the period did not exceed 6 years, renting it out in order to help pay those expenses would be OK. 
Once she passes, the status of the person’s CGT position shifts to those who inherit – if it is still considered her PPOR (so in that six year period) then the CGT status transfers, and the beneficiaries have two years to sell before they incur CGT.
If a family member lived there, and it was to simply take care of the place for your mother, and not a market based arrangement on the same terms as a third party tenant, then this would likely be considered to be the same as if no one lived there.
Of course, if your mother bought the property prior to 19 September, 1985, then all of the above is moot – it’s a pre CGT asset anyway and no CGT applies in any circumstance.
Always check with a good accountant or even the tax office itself though, to ensure that your own situation is covered by these rules.  It’s quite easy to get a private ruling in the event that no one seems sure and that way, you have it all in writing!
Have a property question?  <a href="mailto:askmargaret@propertyobserver.com.au" target="_blank">Ask Margaret!</a>
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mlomas-KC9MUPZ6Ca

Ask Margaret: Is CGT applicable if an elderly resident moves to a nursing home?

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When you’re investing in any asset class, there’s no such thing as a sure bet — and residential property is no different. Whilst there’s potential for capital growth, there’s a flipside of a potential stagnation or decline in market value.
You can reduce these risks by implementing a simple strategy—diversifying your property portfolio. You can do this in two ways. First, buy properties in a range of locations; that is, different suburbs within a city, and/or different states.
Buying all your investment properties in the same suburb or neighbourhood means you’re intensifying your exposure to potential changes outside your control. For example, if you buy all your properties in an area where shifting ground increase the prevalence of major cracking, you could be up for tens of thousands in repair bills, more than once.
<blockquote>
By diversifying your portfolio and choosing good quality properties, you can minimise the risks.
</blockquote>
Further if you buy all the properties in a location that later loses popularity (such as a ‘boom’ town based on a single industry which later goes bust) reduced demand from buyers could affect the resale value of all your assets. If you buy all your properties in an area which later plays host to a freeway that creates considerable nearby traffic noise, you’ll bear an increased risk that not one, but all your properties will stagnate or fall in value.
By diversifying across areas within a city, you can minimise the risk of substantial cash outlays and capital stagnation or loss. If one property takes a hammering, the pain won’t be as bad when your other properties are holding their own.
The second diversification strategy involves buying across different price ranges. This will provide more flexibility when the time comes to sell and free up equity; for example, when you’re nearing retirement and want to top up your super fund.
Let’s say you have $1 million to spend. You can purchase a single asset with the whole amount, or two assets worth, say, $650,000 and $350,000 each. If you buy two assets, you need only sell one to free up cash; enabling you to keep the other and continue to amass a source of equity and income outside super.
This strategy can also spread your tax burden. If you bought one property worth $1 million and sold it for a profit, you’d be liable for capital gains tax (CGT) on the whole profit at once. If you bought two properties and sold them in separate financial years, you could spread your CGT liability over two years.
Because houses are generally more expensive than units or townhouses, diversifying your portfolio across different prices ranges means buying across all three property styles. Having said this, diversifying doesn’t mean compromising on the quality of your investment assets. When it comes to residential property, quality is definitely more important than quantity.
You can’t control changes in the local environment, infrastructure or demographics. But by diversifying your portfolio and choosing good quality properties, you can minimise the risks associated with these factors and come through the worst of storms relatively unscathed.
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marmstrong-sd3emVLPPb

Diversifying your property portfolio

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Hi Margaret
My father has owned his 150 acre property since the '60s. He subdivided the land into three 50 acre blocks in the '90s, but he still owned all three blocks. He lives on one block and is intending to pass a vacant block into my name so I can build my home on it. All blocks are used for a farming business, however he has no taxable income. He is registered for GST.
There is no way to avoid the capital gains tax (CGT) when he places it in my name is there? 
Do you know roughly how much he will have to pay? The CGT calculators don't make sense to me. Even if I do not pay for the block, it is worth about $800,000. The three blocks were purchased for $60,000 in the 60s so the one would have been $20,000.
Many thanks,
Alan from WA
Margaret's answer on the next page. Please click below.
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Hi Alan,
As you father owned the block in the pre CGT days, this block is still a pre-CGT asset. Subdividing the one pre-CGT asset into three does not changed the pre-CGT status and subdividing does not result in capital gain or capital loss. 
Although your father will make a capital gain when he sells (or passes title of) the block to you, the date he acquired the block is considered to be the date that he acquired the original parcel of land, and the cost base of the original land is divided between the subdivided blocks on a reasonable basis. Therefore there is not CGT for your father to pay at all.
More importantly for you is considering how you will receive this block of land, and in what entity.  If you plan to live there then it may become your principal place of residence, and later if you sell there may be CGT consequences from the date you acquired the land in your name. This is because any part of the land over five acres attracts capital gains tax and cannot use the principal place of residence exemption. 
If you are going to conduct a farm then it could be considered business real property, or the part where the farm is conducted could be. It’s worth considering potentially using a self-managed superannuation structure, as business real property can be transferred into super even if it has initially been given to you.
In any event, my advice is for you to seek quality accounting advice before the transfer takes place. This will allow you to ensure that the right structures are in place from the outset.
Kind regards
Margaret
Have a property question? <a href="mailto:askmargaret@propertyobserver.com.au" target="_blank">Ask Margaret!</a>
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My father subdivided a property he's owned since the '60s, does he have to pay CGT?

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Vacant land and new residential communities are appearing regularly, particularly on Melbourne's outskirts and in other cities where land is in no shortage of supply.
Stephen Thompson, Allworth Homes' managing director, said that this makes it a good opportunity for investors, who should consider building a new home as their next investment.
"It is a lot easier than perceived and will give you many benefits along the way," he said.
"Building a new home gives you a blank slate to work with, allowing you to choose all of the decorative features that you prefer. New means low maintenance and more energy efficient as a result of being constructed with the most up-to-date materials, saving you money in the long run."
These are the reasons he provides 'for' purchasing a new home:
<ul>
<li>It’s not as hard as you think. Investors can have minimal hands-on involvement throughout the process and deal directly with the builder to purpose build what they want on their land. 
</li>
<li>Choose the best block. Most builders will assess your block of land free of charge. Or select from land the builder may have already assessed as suitable. 
</li>
<li>Choose the design. Think about what your ideal tenant would want and choose a design to suit. Choose how many bedrooms, bathrooms and even living areas. There are multiple options to choose from when you building new. 
</li>
<li>New homes command top dollar rental. People want to be a part of something new. A brand new property in a great location is super attractive to potential tenants. 
</li>
<li>Capital gain. Selecting a block and builder yourself means you’re the one that will enjoy the capital gain when it comes time to selling the property. 
</li>
<li>Tax advantages. Depreciation allowances apply on the building and also some home contents. Investors should consult with their finance professional to determine their exact tax advantages. 
</li>
<li>Lower ongoing maintenance cost. Big repair bills are a negative to your bottom line and viability of the property as an investment. 
</li>
<li>Save money. Do a little legwork and cut out the middle man. Investor buyers are paying a premium for ready-built.</li>
</ul>
However, there are also substantial advantages for buying established properties.
Here are Property Observer's reasons 'for' buying established property:
<ul>
<li>Usually obtain a discount. You are dealing with a home owner, or investor, usually - rather than a developer. This means you can negotiate down the price, and offer other attractive items, such as a different settlement period, to help secure the deal. 
</li>
<li>You know what it is from get go. It's already there, and there's no messing around. The builder won't do the dodgy on you, and you move in knowing upfront how big it looks and feels and what is included. 
</li>
<li>Renovation potential. Not only can you buy properties that need work for under market value, and face less demand, but you'll also find yourself able to do them up, or sometimes DIY, with any funds you have left available. This will increase the value and, if done well, save you money. 
</li>
<li>Timing. You can buy that house and have the settlement period down as quickly as arranged. When building, there can be unexpected delays or time blow-outs - and you have to wait until completion. 
</li>
<li>Can buy in a built up area. You might not want to buy in an area that's open for development, and this can prompt problems if you're looking for a new place, however established properties are available. You'll need to double check if the area's supply is going to be increased beyond balance by any new developments or house and land estates. 
</li>
<li>Tenants may be in situ. Regularly, properties go onto the market with a tenant already in the house, or a recent history of rental that you can get a gauge of market demand from.</li>
</ul>
Do you prefer new or established property?
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jduke-EHk3XBmHkn

Buy established or buy new? The arguments for both sides

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Capital gain, or the amount you manage to sell the property for, minus what you paid for it, is a taxable income.
The tax you pay on this extra earning is referred to as capital gains tax, or CGT, and is part of your income tax and must be declared on your tax return.
CGT was brought in on 20 September 1985, and anything purchased since this time is subject to the tax, unless they’re specifically excluded. Specific exclusions include your home and car, and most of your personal use assets, according to the ATO. This includes items such as furniture.
“CGT also doesn’t apply to depreciating assets used solely for taxable purposes, such as business equipment or fittings in a rental property,” they explain.
However, shares, real estate and other assets and investments are the most common things hit up for tax.
The family home
If you move out of the home, for up to six years, you may still find yourself exempt from capital gains tax. If you rent out a room in your PPOR, you may find yourself up for a portion of the tax.
If you haven’t owned the property for a whole year, then there is another outcome. <a href="/expert-insights/finance/26397-sept-25-ask-margaret-" target="_blank">Margaret Lomas explains to one investor what tax they’ll be incurring</a> in this Q&amp;A article. 
Keeping records
You must keep records proving the acquisition date (when you bought the property), and how much you purchased it for. You should also keep records about the sale, and when it became transferred into another person’s name. Be aware of lurking too close to the end of financial year – you may find that this changes your plans to minimise CGT.
Speak to your accountant before selling any asset. This is important, as often it is the date on the contract, not settlement date, which can be some months later, that the ATO will look at.
Read<a href="/expert-insights/finance/16990-nine-tax-tips-for-property-investors" target="_blank"> these nine tax tips, from Ken Raiss</a>, for more information on preparing yourself for tax time. 
How much will you have to pay?
There are three ways to work out CGT – the indexation method, the discount method and the ‘other’ method. These three methods apply in different situations, as <a href="https://www.ato.gov.au/General/Capital-gains-tax/In-detail/Guides/Guide-to-capital-gains-tax-2012-13/?anchor=Capital_gains_calculation_methods#Capital_gains_calculation_methods" target="_blank">outlined by the ATO</a>. Property and shares held for more than 12 months are entitled to a 50% CGT discount.
A capital loss, or the amount that you perhaps lose on a property compared to what you purchased it for, can offset a capital gain and reduce tax. Savvy accountants may suggest that you sell a loss-making asset in the same year as one of your best growing properties, if you’re looking to offload both, to help bring down the tax you pay. Capital losses can be carried forward, but not backward.
If you’re looking to work out how much capital gains tax you have payable, then <a href="/expert-insights/calculators/29284-capital-gains-tax-calculator" target="_blank">we have a free calculator online (that doesn’t keep your details)</a> that will quickly calculate what you will need to give to the government.
The length of ownership can heavily affect CGT. Guest observer <a href="/expert-insights/finance/15168-understanding-capital-gains-tax" target="_blank">Terry Hayes describes more about understanding CGT in this article</a>.
Incorrectly stating or <a href="/expert-insights/finance/12314-dont-get-caught-out-by-the-taxman" target="_blank">wrongly outlining your capital gains and related information to the ATO could land you in severely hot water</a>, so it's worth having an accountant give your information a good look.
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What is capital gains tax, or CGT? Investment terms explained

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GUEST OBSERVATION
Under the capital gains tax laws, taxpayers can be entitled to small business capital gains tax concessions which can, depending on the circumstances, either reduce or eliminate any capital gain made. <a href="https://www.smartcompany.com.au/finance/tax/34073-capital-gains-tax-get-your-house-in-order" target="_blank" style="line-height: 1.3em;">The concessions</a> are very beneficial to small businesses, but are unfortunately complex (much more so than they should be).
One of the tests in the law that a taxpayer needs to meet is what is called the maximum net asset value test. This test is whether in the year in question, the concession can be claimed if the value of its net assets did not exceed $5 million. It sounds straightforward, but it isn’t. Under the test, the net value of CGT assets of entities “connected with” the taxpayer is required to be taken into account for purposes of maximum net asset value test. It is the meaning of “connected with” that recently brought a taxpayer undone before the Federal Court.
The taxpayer was a company that made a capital gain of just over $1 million in selling its 50% interest in a car wash business in the 2007-08 income year. It did not return the gain as assessable income but instead claimed that it was entitled to apply the CGT small business concessions. The company claimed that in calculating its taxable amount, it was entitled to rely on a statutory concession in the tax law on the basis that the value of its CGT assets did not exceed $5 million.
However, the Tax Commissioner issued an amended assessment to include the gain on the basis that the taxpayer failed the (then) $5 million MNAV test. At first instance, the Administrative Appeals Tribunal had to decide whether sole director and controller of the company (Mr Roberts), could exclude from the MNAV his interest in a Queensland property, which had been rented for much of the previous seven years, but which at the time of the sale of the carwash had been taken off the rental market and had intended to be once again used as his and his wife's holiday home.
Also at issue was whether the wife's CGT assets, including her interest in the Queensland property, were to be taken into account on the basis of her being either a connected entity and/or a "CGT small business affiliate" of the taxpayer company.
In its decision, the AAT dismissed the argument that the 50% interest of the husband in the Queensland property should be disregarded. However, it held that the wife's CGT assets, including her 50% interest in the holiday home, were not to be counted in applying the MNAV test because she was not connected with the taxpayer company as she did not own any shares in it. It then found that although she was a "CGT small business affiliate" of the controller of the taxpayer company (her husband) by virtue of being his wife, she was not a CGT small business affiliate of the taxpayer company as required by the relevant law in order for her CGT assets to be included. The Tax Commissioner appealed.
The Commissioner argued that in applying the relevant provision, the tribunal ought to have included, but did not include, the value of the assets of Mrs Roberts in the calculation of the value of the company’s assets before the sale of the car wash.
The Commissioner contended that the tribunal erroneously limited its enquiry into whether Mrs Roberts herself beneficially owned shares in the company that carried the right to control the exercise of at least 40% of the voting power, whereas the tribunal ought to have considered whether Mrs Roberts’ small business CGT affiliate (her husband) owned shares in the company that carried between them the right to control the exercise of at least 40% of the voting power.
The Federal Court said the covering words in the relevant provisions of the tax law contemplated three bases upon which to determine the relevant connection between the company and another entity (in this case the wife). The court said the tribunal concluded that the relevant provision did not apply because the wife was not connected with the company although her husband was.
The tribunal did not, however, consider (but should have) whether the wife was deemed to be connected with the company by the same law which required that her connection be determined also by reference to her small business CGT affiliate (in this case, her husband) or together with her small business CGT affiliate (in this case, together with her husband).
The case highlights the inherent complexities in what should really be a relatively straightforward tax concession.
The small business CGT concessions are valuable to any SME and can result in significant tax savings. However, any SME contemplating claiming the concessions would be very well advised to seek professional advice. This is one piece of tax law that is crying out for simplification.
Terry Hayes is the editor-in-chief of tax news reporting at <a href="https://www.thomsonreuters.com.au/" target="_blank">Thomson Reuters</a>, a leading Australian provider of tax, accounting and legal information solutions.
This article first appeared on <a href="https://www.smartcompany.com.au/" target="_blank">SmartCompany</a>.
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Capital Gains Tax

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