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From 1 July 2023, many Victorian landowners whose land is rezoned will face the prospect of paying a significant new tax to the State Revenue Office in the form of the Windfall Gains Tax (“WGT”).
The WGT was first announced by the government on 15 May 2021 and is now a step closer to implementation following the introduction of the Windfall Gains Tax and State Taxation and Other Acts Further Amendment Bill 2021 (“the Bill”) into Parliament.
The details below are based on the current wording of the Bill and are therefore subject to its passage through Parliament and any amendments that might be made.
The WGT will be a new tax in Victoria commencing from 1 July 2023 that is triggered when there is an uplift of more than $100,000 in the value of land due to a rezoning of the land (other than an excluded rezoning). The maximum tax payable is 50% of the uplift.
Any land in Victoria that is rezoned, other than under an excluded rezoning, may be subject to the WGT if the rezoning results in an increase in the value of the land of more than $100,000.
An excluded rezoning (i.e. rezoning that does not trigger the WGT) is limited to the following:
Liability for WGT will be triggered by a rezoning event other than an excluded rezoning (“WGT event”) at the time the rezoning takes effect under the Planning and Environment Act 1987.
The owner of the land at the time the rezoning takes effect is liable for WGT.
Where land is owned by multiple persons, the owners will be jointly assessed for WGT without regard to the separate interest of each owner.
Where land is held on trust, the trustee will be assessed for the WGT in relation to all land subject to the trust, without regard to land held by the trustee for any other trust or for the trustee’s own benefit.
Members of a group of related corporations, trusts or a combination of related corporations and trusts are jointly and severally liable for WGT on all the land held by members of the group that is rezoned by the relevant WGT event. The grouping rules in the legislation are broader than the equivalent rules that apply for land tax purposes, particularly in respect of their application to groups of trusts.
The WGT will be calculated using the following approach:
In other words, in simple terms the formula is as follows (ignoring any negative taxable value uplifts):
(Aggregated Value Uplift – Allowable Deductions) × Applicable WGT Rate
A landowner will become liable for WGT at the time of the rezoning event and will be issued a notice of assessment by the Commissioner of State Revenue(“Commissioner”) for the WGT liability. The WGT will be payable by the due date specified in the notice of assessment.
The onus is on the person served with the notice of assessment to notify the Commissioner of any errors or omissions (such as other land owned by the person or the group of which the person is a member being omitted from the assessment) within 60 days of the date of issue of the assessment.
Before the due date of the notice of assessment, the landowner can elect to defer payment of up to 100% of the WGT until –
If the landowner elects to defer payment of part or all the WGT, the deferred liability will accrue interest at the 10-year bond rate applying from time to time (1.84% as at 30 September 2021).
Where the landowner elects to defer part but not all of their WGT liability, the part not deferred must be paid by the due date in the notice of assessment, otherwise the entire WGT liability becomes immediately payable as if the election to defer part of the WGT had never been made.
Once the deferral ceases, the deferred WGT plus accrued interest must be paid to the Commissioner within 30 days of the relevant event which causes the cessation of the deferral.
Excluded dutiable transactions include:
For the transactions described in (2) and (3) above, the relevant transferee may elect to assume the liability to pay the deferred WGT and accrued interest (instead of the owner(s) of the land at the time of the WGT event). If that election is not made on or before the date of completion of the dutiable transaction, the deferred WGT and accrued interest will become payable by the transferor within 30 days.
Excluded relevant acquisitions include:
A transaction that is an excluded dutiable transaction or excluded relevant acquisition will not trigger the cessation of a WGT deferral arrangement.
Outside of the above deferral mechanism, the Bill provides no discretion to the Commissioner to extend the time for payment of WGT or accept payment of WGT by instalments.
The proposed exemptions and waivers from WGT are summarised below:
WGT is not imposed on up to 2 hectares (i.e., 20,000 square metres) of residential land (whether on one or more titles) or primary production land that includes a residence fit for occupancy at the time of the rezoning, or where a building permit for the construction or renovation of such a residence has been issued and other requirements are met. This exemption applies regardless of whether the dwelling is the owner’s principal place of residence(in other words, it can include holiday homes and investment properties).
WGT is not imposed if the rezoning constituting the WGT event is caused by an amendment to correct an obvious or technical error in the Victoria Planning Provisions or a planning scheme.
Where there was a previous WGT event, WGT was assessed on the previous event and the correction results in a negative value uplift, the Commissioner must reassess the original WGT event and the owner of the land is entitled to a refund of WGT and interest paid on the original event.
WGT is not imposed on land rezoned by a WGT event if the land is subject of a contract of sale, provided that:
WGT is also not imposed on land subject to an option to enter into a contract of sale, provided that:
WGT is not imposed on land rezoned by a WGT event if the Commissioner is satisfied that:
The Amendment Tracking System is the system managed by the Department of Environment, Land, Water and Planning to register, track and process planning scheme amendments.
The Commissioner must waive any WGT and accrued interest payable in respect of land owned by a charity that is used and occupied by the charity exclusively for charitable purposes if the land remains as charitable land continuously for 15 years after the relevant WGT event. Part of the liability will be waived where only part of the land has remained as charitable land for that period.
Taxpayers have the right to object to the valuations on which the assessment for WGT is based, within two months of receiving the notice of assessment.
Importantly, the Bill explicitly provides that the Commissioner will have no discretion to allow a late objection to be lodged by a landowner, which is different from the position in respect of other state taxes such as stamp duty and land tax.
Like land tax, any unpaid WGT and accrued interest and penalty tax will be the first charge on the land in respect of which WGT is payable. This means that it will have priority over any other encumbrances over the land.
The Bill allows for regulations to be issued in respect of the WGT. We expect that regulations will be issued in respect of allowable deductions for the purposes of calculating the value uplift that is subject to WGT.
Susan owns 40 hectares of land in regional Victoria which she has been farming since 1990. Nearing retirement, Susan decides to dispose of the land. In 2022, a property developer enters a contract to purchase the land from Susan, subject to the land being rezoned to a residential zone. The completion date of the contract of sale is therefore deferred until the rezoning has occurred. In September 2024, the local council rezones the land from a farming zone to a residential zone. The pre-rezoning capital improved value of the land was $5 million, and the post-rezoning value is $40million, generating a value uplift of $35 million and triggering a $17.5million WGT liability for Susan as the owner of the land at the time of the rezoning event.
If the land included a residential dwelling at the time of rezoning, up to two hectares would be exempt from WGT. Under the relevant formula, this would result in a WGT liability of $16.625 million, which incorporates a reduction of $875,000 (being 50% of the value uplift that relates to the exempt two hectare portion valued at $1.75 million).
Susan must decide whether to pay the WGT by the due date on the notice of assessment or request a deferral until the earlier of the next dutiable transaction, or 30 years. If Susan decides to request a deferral, she will need to pay WGT and the accrued interest to the Commissioner once the contract of sale settles and the land is transferred to the developer.
In 2022, in agreeing to the relevant purchase price under the contract of sale, neither Susan nor the developer are likely to be in a position to determine with accuracy the expected WGT liability from the rezoning of the land in the future. Accordingly, the extent of the WGT liability may besignificantly overestimated or underestimated, leading either to the developeragreeing to pay too much for the land (as well as higher stamp duty based onthe excessive price), or Susan being left with a shortfall of proceeds afteraccounting to the Commissioner for her WGT liability and accrued interest.
Accordingly, if the legislation is enacted in its current form, it will be vitally important for land owners, purchasers and others that are proposing to enter into transactions that relate to land that is impacted by the WGT, to consider the likely extent of that impact moving forwards and relevant provisions that need to be included in option deeds, contracts of sale, development agreements and other related agreements in order to protect their financial position.
This article is published by R J Sanderson and Associates Pty Ltd ABN 71 060 299 783. This article contains general information only and is not intended to represent specific personal advice (Accounting, taxation, financial or credit). No individual personal circumstances have been taken into consideration for the preparation of this material. It is recommended that you obtain your own personal professional advice before making any financial or business decision.