Foreign Ownership of Australian Assets
There have been significant changes that have recently been implemented regarding Australia’s Foreign Asset Register requirements. These changes came into effect on 1st July 2023 and may have important implications whereby a foreign owner is involved in a trust structure. This article will highlight the key changes to the new Foreign Asset Register in acquiring, starting, or ceasing to have an interest in an Australian business (or entity).
Expanded Registration Requirements for Interests
Previously, it was necessary to register both land and water interests. However, there has been an expansion in the types of land interests that require registration. Now, acquiring freehold interests and leasehold interests (lasting more than five years), regardless of their value or the need for FIRB approval will likely result in the obligation to report such acquisitions. Also changes in the nature of the interest in Australian land will require new reporting obligations, for example a transition from residential to commercial. Additionally, a new category of interest in businesses and entities has been introduced. Any acquisition, establishment, or termination of an interest in an Australian business (or entity) will necessitate compliance and trigger a reporting requirement.
Updated Registration Process
New investment applications must now be registered by obtaining a MyGov ID.
Previously Approved Investments
The new requirements are not retrospective, however any actions taken from 1 July 2023 onwards which were approved under an exemption, or no objection certificate issued prior to 1 July 2023 will be captured. For any existing assets, it is crucial to monitor the following events should they occur as they may give rise to a reporting obligation:
- changes in nature of an interest in Australian land, for example residential to commercial land.
- changes in which a person holding such an interest no longer qualifies as a foreign person or when a foreign investor sells their registrable interest will prompt reporting obligations. Conversely, if a person becomes a foreign person, any previous interest in relevant assets that necessitated FIRB approval and notification will trigger a reporting obligation.
- acquiring an interest in an Australian business (or entity) which was previously notified to the Registrar and its percentage interest increases or decreases by at least five per cent.
Engagement with a solicitor or tax agent is best practice – to allow a detailed review of the trust’s holdings where foreign investors are involved and ensure that all applicable assets are included in compliance with the new changes. It is vital that foreign investors fulfill their obligations within the specified timeframe to avoid penalties and legal consequences.
We understand that compliance with regulatory changes can be complex. Evolution Trustees is here to assist and continues to regard maintaining the integrity of a trust’s reporting and safeguard foreign investor interests of the utmost importance.
This report is for information purposes only and is not intended as an offer or solicitation for wholesale clients as defined in s761G of the Corp[orations Act 2001 (Cth). This report does not take into account the investment objectives, circumstances, financial situation or particular needs of any particular person and does not constitute personal advice. Investors should obtain individual financial advice based on their own particular circumstances before making an investment decision. Evolution Trustees (AFSL 486217) does not guarantee repayment of capital or any particular rate of return. Past performance is no guarantee of future performance. Statements of fact in this report have been obtained from and are based upon sources that Evolution Trustees believes to be reliable, but Evolution Trustees does not guarantee their accuracy, and any such information may be incomplete or condensed. All opinions and estimates included in this report constitute Evolution Trustees judgement as at the date of this communication and are subject to change without notice. This article may contain forward-looking statements regarding our intent, belief, or current expectations with respect to market conditions. Readers are cautioned not to place undue reliance on these forward-looking statements. Evolution Trustees does not undertake any obligation to revise any forward-looking statements to reflect events and circumstances after the date of this website.
About Evolution Trustees
Evolution Trustees is a leading independent provider of Australian professional fiduciary services to fund managers, institutional asset investors and debt providers. Established in 2016, Evolution Trustees now has over $A11bn of funds under supervision and provides services to over 160 entities. Evolution holds an AFSL that authorises it to provide general advice and deal in Australian Carbon Credit Units (ACCUs) and eligible international emissions units. Evolution Trustees is a recognised leader in supporting inbound institutional investors establish structures to invest in Australian real estate.
Please refer to our website for more information at www.evolutiontrustees.com.au