Reassessing additional foreign acquirer duty

For transactions liable for additional foreign acquirer duty (AFAD), reassessments will apply in the following circumstances:

• when a corporation or trust becomes foreign within 3 years of the liability date (section 246A of the Duties Act 2001)
• for agency-related agreements, when
  • AFAD is imposed and paid on a transaction, but the principal is not a foreign person at the time the agent transfers the property to them (section 246AB)
  • the agent or principal becomes a foreign person before the transfer (section 246AC)
  • the principal becomes a foreign person after the transfer (section 246AD)
• for pre-incorporation contracts, when
  • a company is a foreign corporation when the property is transferred (section 246AE)
  • a company becomes a foreign corporation within 3 years (section 246AF).

Corporation or trust becomes foreign (section 246A)

If AFAD is not imposed on a relevant transaction because an acquirer is not a foreign person, the transaction must be reassessed to impose AFAD if within 3 years of the liability date:

• a corporation that was an acquirer under the transaction becomes a foreign corporation
• a trustee was an acquirer under the transaction and the trust becomes a foreign trust.

Within 28 days of the corporation or trust becoming foreign, the corporation or trustee of the trust must notify the Commissioner of State Revenue and lodge the instruments for the transaction with a completed notice for reassessment of additional foreign acquirer duty (Form D4.2). The transaction will be reassessed to apply AFAD as if the acquirer was a foreign person when the transaction occurred.

Reassessments in these circumstances are intended to prevent foreign acquirers structuring to avoid AFAD by keeping their interest in a corporation or trust below the 50% threshold, then increasing it after the transaction.

Agency-related agreements

Principal is not a foreign person (section 246AB)

If AFAD is imposed on an agreement because the agent is a foreign person and the principal is not a foreign person, the principal may request a reassessment if all the following apply:

• the principal appointed a person in writing as an agent and the agent entered into an agreement for the transfer of AFAD residential land on behalf of the principal
• the principal provided all the consideration, including any deposit paid
• transfer duty imposed on the agreement was paid
• the dutiable property was later transferred to the principal by the original transferor or the agent
• at the time of the later transfer of the dutiable property, the principal is not a foreign person.

The principal should lodge the following with the Commissioner of State Revenue within 6 months after the dutiable property is later transferred to the principal when applying for a reassessment:

• a notice for AFAD reassessment—agency-related agreement—principal is not a foreign person (Form D4.3)
• the stamped agreement (the original agreement is preferred)
• a copy of the instrument of appointment of the agent and evidence that you are not a foreign person (e.g. for individuals, a certified copy of your passport, birth certificate or citizenship certificate; for corporations, an official extract from the ASIC register showing office holders and shareholders).

Agent or principal becomes a foreign person before transfer (section 246AC)

If AFAD is not imposed on a relevant transaction because the agent is not a foreign person and the principal is not a foreign person but either becomes a foreign person before the transfer, a reassessment is required if all the following apply:

• the principal appointed a person in writing as an agent and the agent entered into an agreement for the transfer of AFAD residential land on behalf of the principal
• the principal provided all the consideration, including any deposit paid
• the dutiable property has not been transferred to the principal by the original transferor or the agent
• any of the following events happened before the transfer
  1. the agent was a corporation and within 3 years after the time the transaction was liable for transfer duty, the agent becomes a foreign corporation
  2. the agent was a trustee and within 3 years after the transaction was liable for transfer duty, the trust becomes a foreign trust
  3. the principal was a corporation and within 3 years after transaction was liable for transfer duty, the principal becomes a foreign corporation
  4. the principal acted in the principal’s capacity as trustee and within 3 years after the transaction was liable for transfer duty, the trust becomes a foreign trust.

Within 28 days after an event mentioned in (a) to (d) happens, the corporation or trustee of the trust must lodge the following documents with the Commissioner of State Revenue for reassessment:

• a notice for AFAD reassessment—agency-related agreement—agent or principal becomes foreign person before transfer (Form D4.4)
• the stamped agreement (an original agreement is preferred)
• a copy of the instrument of appointment of the agent.

Principal becomes foreign person after transfer (section 246AD)

If AFAD is not imposed on a relevant transaction only because the agent and the principal are not a foreign person and the principal becomes a foreign person after the transfer, a reassessment is required if all the following apply:

• the principal appointed a person in writing as an agent and the agent entered into an agreement for the transfer of AFAD residential land on behalf of the principal
• the principal provided all the consideration, including any deposit paid
• the dutiable property has been transferred to the principal by the original transferor or the agent
• either of the following events happens
  1. the principal was a corporation and within 3 years after the transaction was liable for transfer duty , the principal becomes a foreign corporation
  2. the principal acted in the principal’s capacity as trustee and within 3 years after the transaction was liable for transfer duty, the trust becomes a foreign trust.

Within 28 days after an event mentioned in (a) or (b) happens, the corporation or trustee of the trust must lodge the following documents with the Commissioner of State Revenue for reassessment:

• a notice for AFAD reassessment—agency-related agreement—principal becomes foreign person after transfer (Form D4.5)
• the stamped agreement (an original agreement is preferred)
• the stamped transfer
• a copy of the instrument of appointment of the agent.

Pre-incorporation contracts

Company is a foreign corporation when property is transferred (section 246AE)

AFAD will apply if a transferee enters into an agreement to transfer dutiable property, including AFAD residential land for, or for the benefit of, a company proposed to be registered under the Corporations Act 2001 (Cwlth), and it is a foreign corporation when the dutiable property is transferred.

The company must lodge documents for reassessment, if all the following apply:

• a transferee enters into an agreement for the transfer of dutiable property for, or for the benefit of, a company proposed to be registered under the Corporations Act
• the company is named in the agreement
• the company, or a company that is reasonably identifiable with it, is registered under the Corporations Act
• the company ratifies the agreement under section 131 of the Corporations Act after it is registered
• the dutiable property is AFAD residential land
• the company is a foreign corporation when the dutiable property is transferred to it.

The company must lodge a notice for AFAD reassessment—pre-incorporation contract—company is foreign corporation when property is transferred (Form D4.6) with the stamped agreement (an original agreement is preferred) with the Commissioner of State Revenue within 28 days after the dutiable property is transferred to the company.

Company becomes a foreign corporation after the property is transferred (section 246AF)

A company must lodge documents for reassessment if all the following apply:

• a transferee enters into an agreement for the transfer of dutiable property for, or for the benefit of, a company proposed to be registered under the Corporations Act and the company is named in the agreement
• the company, or a company that is reasonably identifiable with it, is registered under the Corporation Act
• transfer duty is not imposed on the dutiable transaction to transfer the dutiable property to the company because transfer duty imposed on the agreement is paid
• AFAD is not imposed on the agreement for the transfer of the dutiable property
• the dutiable property is AFAD residential land
• the company is not a foreign corporation when the dutiable property is transferred to the company
• the company becomes a foreign corporation within 3 years after the dutiable property is transferred to the company.

The company must lodge a notice for AFAD reassessment—pre-incorporation contract—company becomes foreign corporation within 3 years (Form D4.7) with the stamped agreement (an original agreement is preferred) with the Commissioner of State Revenue within 28 days after the company becomes a foreign corporation.