Consideration and GST withholding
1 August 2018
||Stephen R Brady|
Chief Commissioner of State Revenue
1 July 2018
- Section 21 of the Duties Act 1997 (‘the Act’) provides that the dutiable value of dutiable property is the greater of:
- the consideration (if any) for the dutiable transaction (being the amount of a monetary consideration or the value of a non-monetary consideration1, and
- the unencumbered value of the dutiable property.
- Section 22 of the Act states that the consideration for the transfer of dutiable property is taken to include the amount or value of all encumbrances, whether certain or contingent, subject to which the dutiable property is transferred.
- Where a dutiable transaction is also a taxable supply for GST purposes, the consideration may be expressed either:
- on a GST inclusive basis, meaning no further amount is payable on account of GST; or
- on a GST exclusive basis, with GST being payable as an additional amount as agreed between the parties in a GST clause.
- It follows from section 21 and 22 of the Act, that if the consideration relates to a taxable supply that is subject to GST, duty will be payable on the total consideration, including any amount paid on account of GST, regardless of how the consideration is expressed for GST purposes
- Previously when the consideration related to a sale of land that was a taxable supply, the purchaser paid duty on the GST inclusive purchase price to the vendor (including any amounts paid on account of GST). The vendor then remitted the GST to the Australian Taxation Office (ATO).
- In Ambiance (Arncliffe) Pty Ltd v Chief Commissioner of State Revenue  NSWADT 206, it was decided that as the contract entered into by the parties for the sale of land clearly stated that the sale was a taxable supply, and the GST component of the purchase price was therefore clearly part of the consideration paid by the taxpayer to acquire the land, duty was payable on the GST portion of the purchase price.
- From 1 July 2018, purchasers of new residential premises or residential land may need to withhold an amount that would otherwise be payable to the vendor on account of GST ('GST Withholding'). If GST Withholding applies, the purchaser is required to either:
- remit the withheld amount directly to the ATO, or
- pay the withheld amount to the vendor via a bank cheque made out to the Commissioner of Taxation.
- GST Withholding and related payments will generally occur at settlement, but may occur earlier if the purchase price is payable in instalments prior to settlement.
- In Gould Management Pty Ltd v Chief Commissioner of State Revenue  NSWADT 66, it was held that a separate designation of the GST component relating to the sale does not make any difference to the amount of duty payable on a stamped document. Judicial Member Block, after referring to the Victorian Court of Appeal decision of Commissioner of State Revenue v Royal and Sun Alliance Insurance Australia Ltd  VSCA 177 stated (at 23):
“Whether the price is inclusive or exclusive will make no difference; duty is payable on the consideration which moves the transaction.”
- Duty is still payable on the GST component of the purchase price, even if GST Withholding applies and the purchaser pays the withheld amount directly to the ATO (or to the vendor via bank cheque made out to the Commissioner of Taxation) instead of paying that amount to the vendor.
- ^ See Revenue Ruling DUT 033 Consideration for Duties Transaction