Chapter 1: What is the main topic discussed in this episode?
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And welcome to another episode of The Real Estate Podcast available on iHeartRadio every morning, also on Spotify and Apple and wherever you get your podcasts from. Well, welcome along to a Tuesday morning, the 19th of July for 2022. And coming up, we're talking GST.
Chapter 2: When do you have to pay GST on property transactions?
When do you have to pay it on property? It's a good question. Sam Saad is back and he's going to be offering up some helpful tips. Talking of options, offerings, an opinion piece. This was written by Alice Stoltz a few days ago. This is Australia. Are we not better than this? Alice writes, encouraging first home buyers to think outside the box when it comes to investing in real estate.
She says, look at the bridesmaids suburbs, those areas that sit snugly to where you want to live. Alice writes, we've suggested people weigh up the idea of rent vesting in a bid to get into the market and goes on to say we've suggested quashing the idea that your home has to be on a quarter acre block and that vertical living can be a brilliant alternative.
and that there are incentives currently on offer. A smorgasbord of everything from first home guarantee to the home guarantee scheme to support single parent families, the downsizer super contribution scheme, and then there's the news in June that New South Wales is looking to follow Canberra's lead with a plan to begin to reform stamp duty in the state.
So Alice writes, so what's it going to take? How much more? has to happen australia's affordability issues became an affordability crisis which in turn trickled down to become a first home buyer issue which is now a first home buyer crisis and now the country's rental issues have become a full-blown rental crisis none of what has been done is enough this is australia Are we not better than this?
An opinion piece from a few days ago from Alice Stoltz.
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Chapter 3: What is the ‘Going Concern’ exemption for commercial property?
And Benedict Cumberbatch, he is on the birthday books, turning 45 years. He has already done 91 films, and in 2007 he did a film called Atonement. Great film, by the way, if you haven't seen it. And he was relatively unknown at that point. So in the last 15 years, he has never looked back.
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Chapter 4: What are the requirements for a sale to qualify as a Going Concern?
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Well we are looking at GST this morning which is a broad-based tax levied on most goods, services and other items sold or consumed in Australia. And GST applies on the sale of certain types of property in certain circumstances and importantly there are a number of exemptions that apply in relation to the assessment of GST when purchasing property.
So let's talk through the steps of what you need to think about in this area. And we are looking at, in particular, a going concern exemption for a commercial property. And to help break it all down, we have Sam Saad, partner and owner of Clinch Long Woodbridge Lawyers at clw.com.au. Good morning, Sam. Welcome back to the Real Estate Podcast.
Morning, Craig. Thanks for having me back.
Firstly, let's look at an area within a property transaction that often has people confused, which is GST, and in particular, when GST applies to property negotiations.
Thanks, Craig. Look, GST is the amount of 10% that's added to the purchase price of a property when you buy it. If GST applies, stamp duty will normally be payable on the GST-inclusive purchase price, and this normally increases the purchase price and cost for a purchaser when they go to buy a property.
Generally, GST is payable in relation to commercial properties, but sometimes there's some exemptions that apply, and in particular, the sale of going concern when it comes to commercial property.
And perhaps explain to the audience who might not know what a sale of a going concern actually means.
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Chapter 5: How does GST apply to commercial property sales?
However... In order for a purchase to be a sale of going concern, there are a few things that purchasers need to make sure they've got ticked off before they go ahead. In my view, there's four main things. Number one, the purchaser needs to be registered for GST. A lot of people get this wrong, and particularly when they are buying properties through a trust.
Usually if you have a trustee company, you know, people think they need to register that company, but the key thing is that the trust is actually registered for GST. That's an important component. Number two, the seller also needs to be registered for GST. This is very important, especially when you've got mum and dad sellers who have probably never had to register for GC in their life.
Three, both the purchaser and the vendor must have agreed in writing that the sale of going concern exemption applies. And this usually happens in a contract for sale. And number four, and finally, there must be a lease in place. This must be in place before settlement and must go all the way through to after settlement. If there's no lease in place, then this won't apply.
Gee, you must find that a lot of those trustees, as you mentioned, are not GST because that is such a big problem, isn't it? It has that dominoes effect if you're not registered.
Yeah, that's right.
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Chapter 6: What circumstances prevent the GST exemption from applying?
I mean, if you don't have it registered, the trust, that can cause a huge problem and could end up having buyers pay GST at a later point after the sale, something that they didn't even expect just because of a simple error like that.
And how can a property purchase be GST exempt as a sale of a going concern?
Look, in addition to adding those four things that you need to make sure to apply for a sale of going concern, the most important thing for a commercial property is that the property is being sold with a tenant. If there's no tenant in place and there's no lease in place, the sale of going concern GST exemption won't apply. This means that you'll have to pay GST on top of the purchase price.
And if those items are not ticked and it's usually ticked off in a due diligence process that's done before you buy a property, if it's not ticked off, you could be paying a 10% amount on top. So if you're buying a $5 million property, that's $500,000 you have to come up with that you may not have expected.
And in what circumstances does the exemption not apply?
Craig, look, there's a number of circumstances where it can't apply and some people can get caught out on these very easily if they don't make sure that all their due diligence and lease checks are ticked off. Number one, if there's no lease on the property and it's being sold vacant, the GST exemption unfortunately doesn't apply and you'll have to pay GST on top of the purchase price.
Number two, sometimes people offer, some vendors offer a rental guarantee, but that's not sufficient for a GST exemption to apply. So even though they're guaranteeing the rent to be paid for a certain period after the tenancy commences, they won't be able to claim that GST exemption. We'll still have to come up with that amount up front.
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Chapter 7: What common pitfalls do buyers face regarding GST on property?
Another circumstance is if a purchaser is buying a commercial property subject to a lease, and the vendor terminates the lease before settlement, this could lead to GST being payable on settlement.
Even though you entered into a contract making sure that you had a lease in place, it's important that there are special conditions in the contract ensuring that the vendor has an obligation to make sure that the lease remains in place all the way through and up until after settlement.
Another situation is if it's intended that a going concern is a leasing enterprise, the lessor and the lessee are the same entity, that won't allow you to do a GST exemption. So if the vendor who's selling is also gonna be the tenant, that won't work. And finally, this is where a lot of people get caught out.
If part of the premises has got a lease and the other part doesn't, then the property can be apportioned to only be part GST free. If there's part of it that's not GST free, then you have to pay an amount of GST on top of the portion that doesn't have a lease over it. They're all the main areas that you can get caught out when buying a commercial property.
Boy, that part of premises with the lease, that is such a good one to know.
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Chapter 8: How can engaging a lawyer help with GST in property transactions?
I mean, when it comes to commercial property, there are just so many hooks to it that people have just got to engage with a lawyer to make sure that everything is just covered off, that the T's are crossed, the I's are dotted.
Yeah, absolutely. It's something where a lot of people get caught out, but a lawyer with experience who can look at these things carefully and make sure that every T is crossed and I is dotted will make a huge difference to your purchase and make sure that you're not out of pocket when you come to buy a property.
Good on you, Sam. Well, thanks again. There's plenty of information to take away, particularly if you are thinking about buying commercial property. Look forward to chatting in a couple of weeks' time. Thanks, Craig. You too.
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