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Australia: KPMG comments on consultation on changes to foreign resident capital gains tax

Treasury released a consultation paper entitled “Strengthening the Foreign Resident Capital Gains Tax Regime.”

August 27, 2024

Treasury on July 23, 2024, released a consultation paper entitled “Strengthening the Foreign Resident Capital Gains Tax Regime” detailing elements of a measure that would:

  • Clarify and broaden the types of assets on which foreign residents are subject to capital gains tax (CGT)
  • Amend the point-in-time principal asset test to a 365-day testing period
  • Require foreign residents disposing of shares and other membership interests exceeding $20 million* to notify the Australian Taxation Office (ATO) prior to executing the transaction

The measure, which would be effective July 1, 2025, would align the treatment for nonresidents more closely with that of Australian residents. Read TaxNewsFlash

In response, KPMG tax professionals submitted a document with comments, specifically recommending:

  • Implementation of a transitional rule to mitigate any detriment to existing investments
  • Granting access to foreign investors to the reduced tax rates available under the managed investment trust rules for prospective investments for additional defined classes of investments, including investments in the renewable energy sector, in respect of gains on exit
  • Using the treaty concept of “immovable property” situated in Australia rather than introducing a new “close economic connection to Australian land and/or natural resources” test into the foreign resident CGT rules and specifically including an exhaustive list of assets that fall within the measures, with a regulation making power for the Minister to add new classes of assets
  • Increasing the minimum threshold for the new ATO notification requirement from $20 million to $250 million so that it does not unduly complicate deal execution and completion

*$=Australian dollar

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