Property developers and other vendors can apply for an exemption certificate to sell new dwellings in a specified development to foreign persons, without each foreign person purchaser being required to seek their own foreign investment approval (similar to what has previously been known as an ‘advanced off-the-plan’ certificate).
Developers (either Australian or foreign) can apply for a new dwelling exemption certificate provided that the development:
- will consist of 50 or more dwellings;
- has development approval from the relevant government authority; and
- if applicable, that foreign investment approval was sought to purchase the land and that any conditions are being met.
Applications for a certificate will be considered on a case-by-case basis to ensure they are not contrary to the national interest.
The certificate, if granted, will normally be approved subject to conditions that the developer:
- provide a copy of the Certificate to each prospective foreign purchaser;
- provide a report (timing defined by the certificate) which includes all of the information requested in the New Dwelling Exemption Certificate Report either:
- ensure that the Development is marketed in Australia.
As announced on 26 November 2016, the Government will implement changes under the foreign investment framework to allow foreign buyers to purchase an off-the-plan dwelling when another foreign buyer has failed to reach settlement.
This will include a regulation change to introduce a new exemption certificate which will cover sales by developers to foreign persons purchasing a dwelling that is considered established only due to a failed settlement. The Commissioner of Taxation has advised that no compliance action will be pursued against persons who, if not for a failed settlement preceding their purchase, would otherwise have been covered by an existing New Dwelling Exemption Certificate until the regulations are changed.
Developers must still record the details of the new foreign person purchaser and provide them to the ATO with the details of other sales made under a New Dwelling Exemption Certificate.