Welcome to the latest update from Gilbert + Tobin's Corporate Advisory team.  The update provides a summary of key recent legal developments, particularly relevant to in-house counsel.

In this issue, you will find:

• Changes to the foreign resident CGT regime
• Government steps towards end of digital currency double taxation
• New FIRB business exemption certificate and other changes

Changes to the foreign resident CGT regime

Following the Government’s recent Budget announcement, the Treasury Laws Amendment (Foreign Resident Capital Gains Withholding Payments) Act 2017 (Cth) has modified the foreign resident CGT withholding regime from 1 July 2017 to:

• reduce the withholding threshold for disposals by foreign residents of certain taxable Australian real property from $2 million to $750,000; and

• increase the withholding rate from 10% to 12.5%.

Treasury has also released the Exposure Draft Treasury Laws Amendment (Housing Tax Integrity) Bill 2017: Capital gains tax changes for foreign residents and the accompanying Exposure Draft Explanatory Material for public comment.  If passed, the legislation will, from 9 May 2017:

• remove the entitlement to the CGT main residence exemption for foreign residents that have dwellings that qualify as their main residence; and
• modify the foreign resident CGT regime to clarify that the ‘principal asset test’ will apply on an associate inclusive basis.  Under the foreign resident CGT regime, a capital gain or capital loss made by a foreign resident in respect of an interest in another entity is disregarded unless both the ‘non-portfolio test’ and the ‘principal asset test’ are satisfied in relation to the interest.  The purpose of the non-portfolio interest test is to establish whether a foreign resident has sufficient interest in another entity and the purpose of the principal asset test is to determine when an entity’s underlying value is principally derived from taxable Australian real property (TARP).  A participation interest held by a foreign resident in another entity will pass the principal asset test if the sum of the market values of the other entity’s TARP assets exceeds the market values of that entity’s non-TARP assets, and the foreign resident entity’s total participation interests in the other entity is less than 10%. The proposed changes clarify that the participation interests of both the foreign resident entity and its associates will be taken into account in determining if the 10% threshold has been reached.

Submissions on the exposure draft legislation are due by 15 August 2017. 

See also Treasury’s media release dated 21 July 2017.

Government steps towards end of digital currency double taxation

The Government has released exposure draft legislation and explanatory material for amendments removing the double taxation of digital currency where digital currency refers to “fungible digital units of consideration, that do not have a value based on the value of any other thing or associated entitlements.”

The proposed changes mean that digital currency will be treated like money for GST purposes, making it easier for digital currency businesses to operate in Australia.  Currently, consumers who use digital currencies can effectively bear GST twice: once on the purchase of the digital currency and again when used in exchange for other goods and services subject to the GST.   The new law will ensure that purchases of digital currencies are no longer subject to the GST.

Submissions on the exposure draft legislation have now closed but amending legislation for the changes has not yet been introduced into Parliament.  If passed, the legislation will have a retrospective start date of 1 July 2017.

See Treasury’s media release dated 29 June 2017.

New FIRB business exemption certificate and other changes

The Foreign Acquisitions and Takeovers Amendment (Exemptions and Other Measures) Regulations 2017 (Cth) introduce a suite of changes designed to address deficiencies in the existing legislation and cut red tape.  In particular, new Regulation 42 allows the Treasurer to grant a business exemption certificate over any number of acquisitions to be made by the applicant or another foreign person (including foreign government investors), of any dollar value, for any duration of time, if the Treasurer determines that to do so is not contrary to the national interest.

For further details, see New exemption certificate for business acquisitions should be good news for PE funds by Deborah Johns dated 3 July 2017.