12
Nov

The Federal Government has recently announced that it will be providing a targeted Capital Gains Tax (CGT) exemption for granny flat arrangements, which is expected to commence as early as 1 July 2021, (subject to the passing of legislation to put the exemption into effect).

Importantly, one of the key elements approved by the Federal Government is that, in order to qualify for the exemption, the granny flat arrangements are required to be documented by way of a formal written agreement.

A granny flat arrangement is usually an informal family arrangement which provides for a parent or other relative to reside at the residence of another family member, either by way of occupying a discrete part of a residence or a purpose-built accommodation.  In some cases, the accommodation might be as part of a shared living arrangement (such as occupying a room).  Currently, in most cases these family arrangements are not documented by way of a formal agreement.

CGT implications arise where there are new buildings, extensions or other improvements which increase the value of the property.

Granny flat arrangements are also significant in respect of social security entitlements as the Federal Government has, through Services Australia (Centrelink), made a number of concessions in respect of the impact that creating a granny flat interest might have on a person’s social security entitlements.  As the entitlement to and amount of social security entitlements is subject to means-testing, there are limitations on the value of assets which can be disposed of (the term used by Services Australia being deprived assets) without impacting on those entitlements.

Whilst Centrelink recommend that the arrangements be recorded by way of a formal written agreement, it is not presently a mandatory requirement.  The announcement by the Federal Government may materially change this situation, given the requirements for these arrangements to be recorded by way of a formal written agreement.

Capital Gains Tax implications arise where the granny flat improvements add to the value of a residential property.  Whist a person’s main residence is CGT–exempt, a granny flat which is separate to the main residence is not treated as part of the main residence for CGT purposes.  If the granny flat is fully or partially paid for directly or indirectly by the recipient of the accommodation, then CGT implications might be triggered when the residence is sold.

As to how the Australian Taxation Office (ATO) will ascertain whether there is a granny flat arrangement in existence or whether its value adds to a property is a matter which the ATO will need to address.  However, it can be expected that there will be an obligation on an owner to self-report, and that there may be some information passing between government departments which might identify such an arrangement (for example, Centrelink having a record of an arrangement at a property involving certain individuals – particularly if provision of a copy of a formal written agreement to Centrelink becomes a part of their reporting requirements).

Recording the granny flat arrangements in writing by way of a formal agreement also assists the parties to that agreement to give consideration to a number of matters which might not otherwise be addressed at the time that the arrangements are being put into place. By virtue of the fact that these arrangements are made between family members, there may be some sensitivity around discussing these matters. However, if a formal written agreement is required by the ATO and also Centrelink, then the requirement simply must be met.

CONSIDERATIONS

Matters to be considered by both parties when documenting a granny flat arrangement include the following:

• Each of the parties should receive legal and financial advice;
• What impact the arrangements will have on any social security entitlements;
• If property is provided as part of the arrangement, what the arrangements are in respect of:

• the resulting ownership of the property;
• the costs associated with the transfer of the property; and
• the costs of modifications to or refurbishment of the property.

• If funds are provided towards the provision of the accommodation, how the funds provided or to be provided by the recipient of the accommodation are to be categorised. For example, are the funds to be:

• gift;
• a loan repayable in full or in part if the accommodation is no longer used;
• regular payments towards accommodation (i.e. board).

• What support will be provided to the recipient of the accommodation;
• Will the family member providing the support be seeking or be entitled to seek a carer’s pension;
• What are the recipient’s anticipated healthcare needs and what happens if the recipient needs to be moved to a hospital or care facility for a prolonged period of time or indefinitely. For example, will funds be reimbursed to assist with ongoing care?
• Who is responsible for the maintenance and outgoings of the accommodation;
• How is this arrangement going to be dealt with in the recipient’s Will and also the Will/s of the family member/s providing the accommodation;
• If the arrangement involves a capital contribution or a loan, whether the interest of the recipient should be protected by way of security (such as a non-lapsing caveat);
• What happens if the owner needs to sell the property or his/her family circumstances drastically change (for example if there is a divorce or financial difficulties);
• Whether the recipient of the accommodation can share that accommodation with another person (such as a new partner, where this relationship is entered into after the granny flat arrangements are put into place).

A more precise analysis of the requirements and implications can be given once the relevant legislation and any guidelines are put in place by the Federal Government.

In the case of existing granny flat arrangements, it is anticipated that these arrangements will also need to be documented in order to meet the requirements of the proposed CGT exemption. This is because current arrangements are not exempt and it is likely they would also need to meet all relevant requirements in order to qualify for the exemption. Accordingly, persons involved in current granny flat arrangements should turn their minds to documenting the arrangements once the position is clearer.

The following links contain recent media releases:

https://www.afr.com/politics/federal/granny-flats-to-get-cgt-exemptions-20201005-p56203

https://ministers.treasury.gov.au/ministers/josh-frydenberg-2018/media-releases/removing-capital-gains-tax-granny-flats

Updates will be provided as these matters are advanced by the Federal Government.

Written by Dale Treanor, Consultant Solicitor, Commercial Law Division