How property investors can avoid the traps and pitfalls of land tax

What is land tax? Who should pay it? And can I reduce this major property cost, which seems to eat into my rental income disproportionally?

These questions are often asked by the serious property investor who already has or is in the process of building a significant property portfolio.

The following article considers some of the traps and pitfalls while offering some suggestions on how to minimise this state-based tax.

In general, land tax is not levied on the property if it is your principal place of residence (PPR).

Land tax is an annual tax based on the ownership and usage of land owned at midnight on the land tax anniversary date of the state, which is usually either June 30 or December 31. It is levied in respect of the financial year immediately following that date. All states other than the Northern Territory apply land tax. This tax should be seen as a cost of doing business and is tax deductible.

As is the case for most taxes it is up to the taxpayer to advise the relevant state department that they are subject to land tax based on self-assessment by submitting either a land tax registration form or a land tax variation form. This will trigger land tax assessment notices to be issued if and when appropriate. Failure to advise can lead to significant penalties and back dated charges which the land owner may not be able to claim as a tax deduction.

Land tax is generally levied on the unimproved capital value of the land (not the total property value). Each state has different rules and thresholds of when the land tax will be applied. The threshold is the dollar value at which land tax will become payable. Below that figure no land tax is levied, and above it land tax commences at the prescribed rates. Most states have escalating rates as the land value increases so it is not proportional. In general there is a different rate and threshold for individuals and companies and a different set of rates for trust although in some states trusts are treated the same as individuals. The full land tax liability is therefore the land value multiplied by the applicable rate.

Exemptions are normally applicable to the principal place of residence, but only if it is being occupied as the PPR. If the taxpayer moves out (land tax form variation required) and uses the property as an investment property then land tax may be due even if it is still within the main residence six-year rule for ATO purposes. Other exemptions are normally available to agricultural use land and charities.

A PPR held in a trust may in some cases still be exempt if being used by a person with an approved disability and in some states an exemption or threshold is applied if the property in the trust is nominated as a PPR of the taxpayer. The rules for a PPR benefit within a trust are strict and need to be fully understood and met or the imposition of land tax will apply. Queensland has the easiest procedure (tick the box on the registration form), but while the property may be exempt from land tax it is not exempt from CGT on a sale, as this exemption normally only applies to individually held property. There are certain circumstances where the main residence exemption is applicable when a property is held in a trust but this is not discussed in this article.

In NSW and Victoria trusts with any discretionary capabilities do not get a threshold but in these states an approved fixed trust does receive a threshold if correctly worded and administrated. Superannuation funds in all states also receive the benefit of the threshold for property in that state.

An opportunity, however, does exist to manage the land tax liability for landholders by holding land in various individual, company and trust structures that are each entitled to a threshold. As land tax is state-based the tax is levied by the state where the property or land is located and a state does not aggregate land from other states when assessing. For example, land held in different companies would each be entitled to a threshold as long as management and control is different. Various states have grouping provisions which would also apply to trusts. Note that assets held in a company if sold do not get the 50% CGT general discount and for a waged employee negative gearing on a property held in a company cannot be claimed against personal income. Negative gearing against personal income is however available if the property or land is held in a Property Investor Trust®, which has an ATO Product Ruling (PR 2011/15).