1.0 Summary Introduction Reasons Against Imposing Stamp Duty on GST 5

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1 Property Council of Australia Stamp Duty and the GST A Submission to the Tasmanian Government: May 2000

2 Table of Contents 1.0 Summary Introduction Reasons Against Imposing Stamp Duty on GST Low income earners will be harmed The proposal will deliver a windfall gain to government The proposal represents a GST surcharge The ACCC s exploitation guidelines would be breached The proposal is inequitable The proposal would interfere with efficient operation of the GST There is no rational justification for the proposal Recommended Solutions Conclusions Appendix Table: Increase in Effective Stamp Duty 19

3 1.0 Summary Several Australian governments propose to charge stamp duty on the GST inclusive price of a transaction. The Property Council of Australia opposes this move because it: represents a tax on a tax; harms low income earners, small businesses and superannuants, with stamp duty increases of more than 17% likely on some transactions; increases inequity by discriminating against certain taxpayers in a way that takes no account of their capacity to pay; would interfere with the efficient operation of the GST as the proposal would penalise sales of real property where the parties choose not to apply the margin scheme; exacerbates differences between GST and non GST property transactions and thereby creates market distortions; breaches the spirit of the Intergovernmental Agreement on the Reform of Commonwealth-State Relations, which seeks to reduce the burden of inefficient indirect taxes; provides state/territory governments with a windfall gain in circumstances where the Federal government has clearly guaranteed the maintenance of their revenues; breaches the spirit of ACCC guidelines on exploitation of the GST framework for financial advantage; is out of step with other GST/VAT jurisdictions around the world; falsely equates GST with wholesale sales taxes as a justification for double taxation; and, discriminates even further against the property industry, which bears a disproportionate burden of state/territory taxes. In short, not only will state governments receive the new GST revenues, but will also use the GST system to leverage up their existing indirect tax revenue base. There are several simple means of both protecting governments existing stamp duty revenues without charging stamp duty on the GST inflated price of property transactions. These are set out below. The long term solution is to eliminate stamp duties altogether. Stamp Duty and GST Submission by the Property Council of Australia Page 3

4 2.0 Introduction The Property Council of Australia supports the Tasmanian Government s acknowledgment of the inequities in levying lease and rental business duty on GST-inclusive values. However we are disappointed that the same rationale was not applied to property conveyances. Calculating stamp duty on the GST inclusive value of property transactions and leases is inequitable, unfair and discriminatory. It also reverses efforts to reduce inefficient indirect taxes in favour of a broad based consumption tax. Rather than reducing overall tax burdens, the proposed measure will increase them. The Property Council of Australia is a strong supporter of efforts to reform Australia s taxation system. However, the proposal to use the stamp duty system to manufacture a GST surcharge undermines these efforts. Consequently, we ask all Governments to re-examine their position urgently. This submission: outlines reasons for reconsidering the current proposal; and, suggests methods for calculating stamp duty that protects the current revenue base. Stamp Duty and GST Submission by the Property Council of Australia Page 4

5 3.0 REASONS AGAINST IMPOSING STAMP DUTY ON GST 3.1 Low income earners will be harmed The hardest hit by the GST surcharge will be: low income earners; small businesses; and, superannuants. Such a result contradicts the claims of governments that say they are protecting ordinary Australians and battlers. The percentage increase in stamp duty revenue collected will rise disproportionately across the stamp duty system. This is due to the sliding scale of rates of conveyance on land transfer applied to the price or value of a property (the ad valorem system). Consequently, where the GST added is assumed to be 8%, the increase in duty is up to 17.36% in New South Wales, 10.97% in Tasmania and 13.9% in Western Australia. These figures are conservative and would be worse if the full 10% GST flows through to the prices of new homes. Lower income earners, who are most likely to purchase property in lower price ranges will suffer the highest increases in the stamp duty cost. The worst hit are those purchasing properties in the price range of $80,000 to $300,000 in New South Wales, $150,000 to $300,000 in Tasmania and $100,000 to $250,000 in Western Australia. This outcome would be grossly unfair and inequitable. The following shows clearly how effective stamp duty rates will rise when calculated on a GST inclusive basis. Table 1: Purchase Price $ 14,000 15,120 30,000 32,400 80,000 86, , ,000 1,000,000 1,080,000 2,000,000 2,160,000 3,000,000 3,240,000 Duty Amount $ ,290 1,514 8,990 10,070 40,490 44,890 95, , , ,690 Effective Rate of Duty % Difference in Duty $ Percentage Increase in Duty % , , , , Increases in stamp duty rates assuming a net 8% GST increase is embodied in prices. Stamp Duty and GST Submission by the Property Council of Australia Page 5

6 The surcharge will also reduce the value of the proposed First Home Owners Rebate, which is specifically designed to assist lower income Australians cope with the new GST. The other losers are superannuants. An ever-increasing majority of Australia s commercial and retail buildings are owned by superannuation funds and unit trusts. There are more than 24 million investor accounts (superannuation, life and widely held trusts) in Australia, virtually all of which are exposed to commercial property. Stamp duty on major commercial property transactions is generally levied at the highest rate 5.5% in NSW. It is worth noting that Tasmania has one of the lowest rates in the country 4.00%. However, every million dollars collected in stamp duty is taken from the retirement bank of superannuants on a compound basis. Over just 15 years (a short time frame for superannuation purposes), assuming a modest 8% average annual return, the value of a $1 million transfer from superannuants to government nearly triples to $2.9 million a massive opportunity cost to ordinary Australians. The proposed GST surcharge will further increase the loss to superannuants. Ultimately, higher taxes levied on landlords translate into a higher cost of space for small businesses, which comprise 90% of the tenant base of Australia s cities. Stamp Duty and GST Submission by the Property Council of Australia Page 6

7 3.2 The proposal will deliver windfall gains to revenue The Explanatory Memorandum of the Financial Relations Agreement (Consequential Provisions) Bill 1999 (WA), which serves as a model for other states and territories says: some revenue bases are still likely to go down because the 10% GST is replacing a much higher wholesale sales tax. This is likely to occur in the case of motor vehicle stamp duty, rental business duty and car and home contents insurance policies. However there will be increases in other stamp duty bases, particularly property conveyances and insurance premiums paid by business, which are likely to more than offset the decreases. (emphasis added). By setting stamp duties at the same rates on GST inclusive prices, the States and Territories will receive a generous boost to revenue, a fact acknowledged in the WA Explanatory Memorandum. This comes at a time when revenue collection for property transactions is at an all-time high. The extension of the tax base amounts to a windfall gain by the State and Territory Governments at the expense of their constituents. The Property Council of Australia and PricewaterhouseCoopers calls on governments to reject the opportunity to make windfall gains given the Federal Government has clearly promised to protect the revenue of all states and territories. The Intergovernmental Agreement On The Reform of Commonwealth-State Financial Relations provides in paragraph 10 that: In each of the transitional years following the introduction of the GST, the Commonwealth guarantees that the budgetary position of each individual State and Territory will be no worse off than it would have been had the reforms set out in this Agreement not been implemented. And paragraph C1 of Appendix C provides that : Commonwealth legislation will provide a State or Territory with an entitlement to an additional amount of funding from the Commonwealth to offset any shortfall between its entitlement to GST revenue grants and the total amount of funding which would ensure that the budgetary position of a State or Territory is not worse off during the transition period. Stamp Duty and GST Submission by the Property Council of Australia Page 7

8 The Intergovernmental Agreement encapsulates a commitment to continued reform which is highly commendable. It is the spirited pursuit of more productive Commonwealth-State financial relations that should guide decision making about stamp duty calculation methodologies. In short, the State and Territory Governments should not profit out of the process of reforming Commonwealth-State financial relations. If stamp duty is imposed on the GST inflated price of property, the windfall to State/Territory revenue will be magnified by the fact that stamp duty will not only be charged on the GST inflated price of the purchase, but may also be charged on the GST inflated mortgage and insurance prices relating to property. The windfall to State/Territory revenue from collection of stamp duty on the GST inflated price of property will be even greater where goods that are subject to GST are transferred with other dutiable property since stamp duty will also be collected on the GST inflated price of the goods. Stamp Duty and GST Submission by the Property Council of Australia Page 8

9 3.3 The proposal represents a GST surcharge By levying stamp duty on GST inclusive prices, governments are creating a GST surcharge. Such a result breaches the terms of the Intergovernmental Agreement on the Reform of Commonwealth-State Financial Relations, which provides at paragraph 5(i) that: The Parties will undertake all necessary steps to have appropriate legislation enacted to give effect to the following reform measures. The Commonwealth will legislate to provide all of the revenue from the GST to the States and Territories and will legislate to maintain the rate and base of the GST in accordance with this Agreement. (emphasis added). The imposition of stamp duty on GST at stamp duty rates of up to 5.5% on the GST component of property transactions is a de facto increase in the rate of GST. This is in direct conflict with the Commonwealth Government s promise to the Australian public and the Australian Democrats not to increase the rate of GST without due procedure, and also inconsistent with the Intergovernmental Agreement The imposition of stamp duty on GST by State and Territory Governments alone is a surcharge on GST which has not been endorsed by the Federal Parliament. Stamp Duty and GST Submission by the Property Council of Australia Page 9

10 3.4 The ACCC s Exploitation Principles would be breached The Australian Competition and Consumer Commission guidelines titled Price Exploitation and the New Tax System ( ACCC Guidelines ) are designed to prevent over-recovery of tax charges by the private sector. The guidelines state at paragraph 24 that: It is the government s intention that consumers should benefit fully from reductions in indirect tax and should not be exposed to greater than necessary tax related price rises. There should be no exploitation of consumers. And paragraph 5 provides: The New Tax System changes will affect the prices that businesses (or suppliers ) charge for goods and services in virtually all industries. The effects will vary with some prices falling and some prices rising. The Government intends that consumers should benefit fully from reductions in indirect tax, and that they should not be exposed to greater than necessary price rises. There should be no exploitation of consumers. At paragraph 27, the Guidelines state: the New Tax System charges are not to be seen as an opportunity for businesses to raise profits, even where profitability may be low. And at paragraph 28: The Commission recognises the crucial role of competition in protecting the interests of consumers. Where effective competition is present it will be more difficult for businesses to sustain price exploitation. Because of this the Commission will particularly, but not exclusively, focus its scrutiny on situations where businesses have substantial market power. And at paragraph 46: No markup should be applied to the GST component of the price And at paragraph 47: "This translates into a simple rule that business should not increase the net dollar margins on their goods and services as a result of the New Tax System changes alone." Stamp Duty and GST Submission by the Property Council of Australia Page 10

11 At footnote 2 and paragraph 53, the guidelines contrast: maintaining a constant dollar margin; and maintaining percentage margins. The ACCC is quite specific that businesses should not seek to maintain their percentage margins, which may increase or decrease depending on whether the tax reform changes have decreased or increased the price of the supply. Businesses are only justified in maintaining their constant dollar margins. The proposal by state and territory government to apply stamp duty to the GST component of a price is therefore in breach of the spirit and the letter of ACCC guidelines, and will have the effect of increasing net dollar margins, although ACCC guidelines warn against this. It is submitted that the spirit of the Guidelines is being contravened by state and territory governments, which, acting as a monopoly, are over-recovering tax charges from the community. Instead of prices reducing as a result of introducing a broad based tax, they are increasing to the advantage of government. Stamp Duty and GST Submission by the Property Council of Australia Page 11

12 3.5 The proposal is inequitable As far as possible taxpayers in like economic and social circumstances should face similar taxation liabilities. The proposed stamp duty premium breaches this principle and is inequitable for two major reasons: it will drive a tax wedge between GST and non GST transactions; and, it will determine liability on a variety of criteria that have nothing to do with capacity to pay tax. Tax Wedge between GST/Non-GST Transactions Stamp duty on GST will increase the tax wedge between transactions that are subject to GST and those that are GST Free, Input Taxed, or are outside the GST system. For instance, there is no GST on existing homes while there will be on new homes, which will therefore increase in cost and attract higher stamp duties. It is unfair that the GST status of a transaction should determine exposure to the proposed surcharge. Equity between Taxpayers In all states and territories, the GST component of a property transaction would form part of the base on which stamp duty is charged only if the GST component amounted to consideration for the property. Similar issues arise in relation to leasing transactions. The circumstances in which GST forms part of the consideration for the property will depend on the contractual arrangement between suppliers and their customers. In some cases, the price charged may be expressed to be GST exclusive; or it may be expressed to be GST inclusive; or it might be silent as to the payment of GST. It is highly inequitable and unfair to impose stamp duty on the GST component depending simply on the form of contractual arrangement struck with a purchaser. Stamp Duty and GST Submission by the Property Council of Australia Page 12

13 3.6 The proposal would interfere with the efficient operation of the GST The proposal will interfere with the efficient operation of the GST as it will provide an incentive to sell commercial property under the margin scheme. Such an outcome is undesirable as it will cause tax cascading when commercial property is purchased. The GST legislation allows a seller of real property to apply the margin scheme to a sale (but not if the real property was acquired under a taxable purchase to which the margin scheme did not apply). Where the margin scheme applies, GST is calculated as 1/11 of the seller's margin - which is the seller's sale price less the previous acquisition price paid by the seller. In such cases, a purchaser is not entitled to an input tax credit. Particularly where the real property is commercial property, for example a factory or office block, it is undesirable for a sale to come under the margin scheme, as a purchaser, who is registered for GST, will be entitled to a full input tax credit for the GST. In these cases, purchasers will prefer sales not to be under the margin scheme and for the GST to be 1/11 of the full sale price including GST. The GST operates quite efficiently and fairly in this instance as GST will be payable on supplies made by a purchaser as a result of owning the factory or office block. The effect of paying GST on the full purchase price and then obtaining an input tax credit, is that the cascading of indirect taxes is avoided. This is the main advantage in having a GST or VAT as compared to a retail tax or turnover tax, which was abandoned in Europe in the 1950s in favour of a VAT to avoid the problem of cascading. Where the margin scheme applies, the potential for cascading arises because the purchaser will not recover any input tax credit, although the nominal GST on the acquisition will be much lower. The proposal to levy stamp duty on the GST inclusive price will create an incentive for parties to sell under the margin scheme. For example, where a factory is sold for $1 million dollars (excluding GST) and the vendor's margin is, for example, $11,000, and the vendor is entitled to sell the asset under the margin scheme, there will be an incentive to sell under the scheme. This is because stamp duty will be levied on $1,001,000 (GST will be 1/11 of $11,000) rather than on $1,100,000 which would be the GST inclusive price if no election were made to sell under the margin scheme with full GST being paid. Stamp Duty and GST Submission by the Property Council of Australia Page 13

14 The outcome, however, is that a GST input tax credit will not be obtained and there will be cascading of the GST, which is inefficient and is contrary to the design of the GST. Not all vendors will be entitled to elect that the margin scheme will apply and there will be wide differences in the level of stamp duty payable on different commercial properties having the same value depending on whether the vendor is, or is not, entitled to sell under the margin scheme. This will add unnecessary complexity to the property market and will distort economic decision making. Stamp Duty and GST Submission by the Property Council of Australia Page 14

15 3.7 There is no rational justification for the proposal One defence advanced by some governments is that other countries calculate stamp duty on VAT/GST inclusive prices. It is also argued that stamp duties are currently applied to transaction of goods where wholesale sales tax (WST) is imbedded. The Explanatory Memorandum of the Financial Relations Agreement (Consequential Provisions) Bill 1999 (WA) provides that: Unlike pay-roll tax, the various heads of stamp duty generally apply to values that directly or indirectly include wholesale sales tax. For example, sales tax is directly included in the market value of new motor vehicles for stamp duty purposes. In other cases, sales tax is an embedded cost that increases the price of property such as a home, which is subject to stamp duty when sold. As the GST is to replace the current wholesale sales tax regime, it is appropriate that stamp duty be based on the GST inclusive price, value or consideration. This was also the approach taken in the United Kingdom and New Zealand, and recognises the impracticality of applying stamp duty to a GST-exclusive value when the GST is an embedded cost. Overseas Experience The United Kingdom applies stamp duty to VAT/GST inclusive prices. However, unlike Australia, the stamp duty base is narrower and the rates of stamp duty were lower in the United Kingdom at the time VAT/GST was introduced. Similarly, other countries apply much lower stamp duty rates and do so on a much simpler basis. In New Zealand, stamp duty on property conveyances has been abolished. The New Zealand government s efforts to reduce inefficient indirect taxes offer an excellent precedent for Australia. Stamp Duty and GST Submission by the Property Council of Australia Page 15

16 WST is Already Embedded The argument that wholesale sales tax is already imbedded in the prices of goods that attract stamp duty is irrelevant for two reasons: First, the tax reform project summarised by the Intergovernmental Agreement aims to eliminate inefficient indirect taxes, particularly those embedded in the value added chain. The proposed GST surcharge merely replicated a legacy tax system. Second, GST and WST are totally different in nature. There is no WST on a transaction of property. The fact that WST exists higher in the value adding chain is irrelevant. In addition, the GST is far more transparent that the WST, and relatively simpler to separate out and identify. Consequently, the rationales offered in defence of the surcharge either ignore the aims of the tax reform project or ignore the nature of the new GST. Stamp Duty and GST Submission by the Property Council of Australia Page 16

17 4.0 Recommended Solutions We recommend state and territory governments reverse any decision to apply stamp duty to GST and commit not to collect stamp duty on GST. A simple, equitable and fair arrangement would allow the purchaser of property to avoid this unfair impost. In this regard, we submit the following alternatives for calculating duty on commercial and new residential property transfers exclusive of GST: where the price of the property is expressed to be price plus GST, stamp duty is calculated on the price excluding GST; where the price is expressed to be or is inclusive of GST, duty is calculated on the price of the property less the GST. Alternatively, stamp duty rates could be reduced. At this stage, the Property Council prefers in cases where price is expressed to be inclusive of GST, that stamp duty is calculated on the price of the property less the GST. Further, we recommend amending the stamp duties laws of each State and Territory to make it clear that the consideration for property purchases and the rent for property leases specifically exclude any GST component. Stamp Duty and GST Submission by the Property Council of Australia Page 17

18 5.0 Conclusion Stamp Duties on property already fail several key tests of a well designed tax. The proposal to levy stamp duties on the GST inclusive price of property increases these failings. In short: stamp duty is a transactions based tax that encourages producers and consumers to lock into property, thereby distorting investment decision making this feature will worsen under the GST surcharge; stamp duty is discriminatory because it imposes a higher level of duty depending on the type and price/value of asset that is being transferred this brake on investment will also worsen under the proposal and will interfere with the efficiency of the GST; stamp duty in Australia is already imposed at significantly higher levels than our trading partners the surcharge will increase this disadvantage; and, stamp duties rate very poorly on traditional measures of good tax design, such as efficiency, equity and simplicity failings that will now be exacerbated. Fundamentally, a tax on a tax is unfair; especially when one tax system designed to reduce inequity, inefficiency and complexity is being used to leverage up tax revenues on one of the taxes it is meant to replace. The losers are low income earners, superannuants and retirees. The Property Council of Australia and PricewaterhouseCoopers offer constructive solutions that help avoid these problems while protecting governments existing revenue base. We welcome an opportunity to discuss these matters with government. Stamp Duty and GST Submission by the Property Council of Australia Page 18

19 APPENDIX: EFFECTIVE STAMP DUTY INCREASES Increases in stamp duty rates assuming 8% GST increase embodied in prices. Tasmania Purchase Price $ 14,000 15,120 30,000 32,400 80,000 86, , ,000 1,000,000 1,080,000 2,000,000 2,160,000 3,000,000 3,240,000 Duty Amount $ ,825 2,017 9,550 10,510 37,550 40,750 77,550 83, , ,150 Effective Rate of Duty % Difference in Duty $ Percentage Increase in Duty % , , , Stamp Duty and GST Submission by the Property Council of Australia Page 19

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