How do foreign resident capital gains withholding clearance certificates work with SMSFs?

Amendments to the foreign resident capital gains withholding regime came into effect on 1st January 2025. The original legislation was enacted to ensure foreign residents selling taxable Australian real property (TARP) met their capital gains tax obligations.
Foreign resident capital gains withholding tax (FRCGW) must be applied to sales of Australian real property.
An exception applies to Australian residents. All vendors including SMSFs must obtain a Foreign Resident Capital Gains Withholding Clearance Certificate (FRCGWCC) from the ATO to confirm their residency status and provide it to the purchaser to be exempt.
What types of assets are taxable Australian real property (TARP)?
Examples of TARP include property situated in Australia such as:
- vacant land, residential and commercial buildings
- mining, quarrying or prospecting rights
- indirect Australian real property interest (IAPIK), where the holder has a right to occupy land or buildings i.e. a lease or land rich company
What is the withholding rate?
From the 1st January 2025 the withholding rate increased from 12.5% to 15%. The withholding tax is applied to the market value of the Australian property.
What happens if an SMSF does not obtain a clearance certificate?
The purchaser must withhold tax from the sale proceeds and remit it to the ATO at or before settlement date. A purchaser failing to withhold the tax is subject to penalties and liability for the outstanding tax.
How long does the ATO take to provide a clearance certificate?
The ATO may take up to 28 days to provide a FRCGWCC to the vendor. The certificate is valid for 12 months subject to a change in residency and can be applied for prior to entering into a contract of sale. There is no cost in obtaining a certificate.
Removal of $750,00 property value threshold?
From the 1st January 2025 there is no threshold. All property sale transactions are subject to the foreign resident capital gain withholding regime.
How is an Australian property valued?
The market value of the Australian property is the sale price as per the contract before any adjustments such as water rates, council rates and strata levies is applied when the parties are dealing at arm’s length. However, if the parties are not dealing at arm’s length i.e. when a member of the SMSF is the buyer the purchaser must obtain a valuation from an independent qualified valuer
Who is the vendor in relation to an SMSF?
The owner on the certificate of title and the clearance certificate must match to avoid delays in obtaining the certificate. The legal owner of property is the SMSF trustee, or it could be the custodian trustee if the property is held under a limited recourse borrowing arrangement (LRBA). It is the residency of the SMSF trustee or custodian trustee which is being confirmed by the ATO. Where the fund has individual trustees, each of the trustees must apply for a clearance certificate. Otherwise, it is the SMSF corporate trustee or custodian trustee who applies for the clearance certificate.
Clawing back foreign resident capital gains withholding tax
An SMSF selling a property where foreign resident capital gains withholding tax was remitted to the ATO by the purchaser can have it refunded when the fund’s annual return is lodged. The withholding tax may be remitted in a different year, but the credit is allowed in the year the contract was signed, regardless of CGT applying or if there is no tax liability.
SMSF transferring property
The following situations may be caught under the legislation requiring an SMSF trustee to obtain a FRCGWCC:
- transfer of a residential or commercial property as an in-specie lump sum payment made from an SMSF to a member
- transferring the title of SMSF property to a new trustee when changing individual trustees to a corporate trustee or an individual trustee retires and a new individual trustee is appointed
- an SMSF member transfers business real property to the SMSF
- transferring property owned by a custodian back to the SMSF after a loan subject to a LRBA has been fully repaid
To avoid unnecessary withholding the clearance certificate should be obtained and provided to the transferee prior to the date of the transfer.