Australian Taxation Law

Question: Identify and evaluate key arguments both for and against retaining these tax concessions if housing affordability is to be achieved. In your response you must explain what is meant by negative gearing and how capital gains arising from property investment are treated. You should refer to sections of legislation, tax rulings and cases where relevant. Answer: Introduction Housing affordability is a term that is used to describe the relationship between household income and household expenditure of an individual related to the costs of housing. Housing affordability is related to the acceptable proportion of income of an individual that must be spent for housing purposes. In other words, the concept relates t the capability of an individual to survive sufficiently after incurring expenses for housing purposes. In the present situation, housing expenses of Australian citizens have increased to a great extent. According to a report published by the Australian Housing and Urban Research Institute titled Housing Affordability: A 21st Century Problem, around 15% of all households in Australia pay almost 30% of their income for their housing costs. This surge in the prices of housing and rental properties in Australia has affected the middle and lower income groups to a great extent (Action for Housing Affordability, 2016). This gave birth to the concept of Negative Gearing that was introduced as a tax measure by the Government to set off the ill effects of the soaring prices of the real estate. Negative gearing is a practice where an individual borrows money to invest in income producing investment property in expectation that the income generated from the property will be more that the costs of acquiring and maintaining the property. However, in reality this does not happen and the costs exceed the income resulting in a loss. According to the provisions of the Income Tax Assessment Act 1997, expenses and losses incurred while producing income from an investment decisions are subject to deductions from the assessable income of such individual. In the present scenario, people are intentionally resorting to more and more to negative gearing in order to reduce their overall tax liability. This has resulted in much speculative activities in the real estate market and reduced house ownership further as the prices of properties have failed to reduce ("ACOSS address the impact of negative gearing and Capital Gains Tax on housing affordability | ShelterWA", 2016). The secondary mortgage market also has been affected by such type of speculative transactions. This essay is directed towards evaluating these points and brings out the points related to the nexus among housing prices, negative gearing and capital gains tax regime. Is there a housing crisis in Australia? This has been the main topic of discussion in Australia over the past few years. Housing costs and overall housing expenditure on the housing sector is much more when compared to the other developed countries of the world. Housing costs have increases to a great extent during the years. One of the reasons for such increase is the growth in the urban population. Demand has increased over the years; however, on the other hand, supply is limited and has been restricted by the government in various occasions. Another important and influencing factor is the nature and extent of the demand (Choice, 2016). People have a fascination about the size of homes and rental properties. They often choose large chunks of land to build their home on. Increasing interest rates is also considered to be contributing factor to this current situation as it leaves its impact on the mortgage debt and the mortgage debt market. Residential and commercial backed securities have lost their value in the market as there is a rising trend in default in repaying mortgages by the borrowers who are more concerned about obtaining tax concessions and deductions from the tax authorities ("Expenses deductible immediately - management and maintenance including interest | Australian Taxation Office", 2016). With a rise in housing prices, more and more people are losing their ability to afford a shelter over their heads, especially the lower and the middle income group. Factors Influencing Housing Affordability The housing sector is one of the primary concerns of any government. Since the prices have posed much concern in the country, the government took a few steps to control the market prices. However, these steps did not prove effective to bring a proper solution to the problem. Property price has increased are constantly being overvalued making it difficult to access for most of the population who do not own their house. The situation is so grave that the country is in a brink of having a mortgage crisis. Low and restricted supply of land and property have fuel the crisis. Such a rise in the property prices will tend the market to destabilize. This will create a difference between the level of income and property prices. In such a situation, the primary objective of the government is to make housing affordable ("Borrowing to invest and negative gearing - pros, cons, and how it works", 2016). The government proposed various tax reforms in order to control the situation. Since 200, the de mand of real estate has increased to a great extent and this has allowed sellers and builders to raise the price levels. This has resulted in much concern and now people are required to sacrifice more of their financial resources in order to own or rent a property. First time home owners are the worst affected groups as they are go to great lengths to accumulate finance for their first homes. On the other hand, tax concessions and deductions are available only to people who are interested in acquiring investment properties that will tend to generate assessable income for them. Some of the other contributing factors stipulated by the experts are inflation, the prevailing tax structure and easy access to credit for investment purposes. Negative Gearing and Capital Gains Tax Negative gearing involves and borrower to borrow money for investing in investment properties that tend to fetch future income for such borrower. The quantum of future income is of great important in negative gearing. The borrower invests in such properties where the future assessable income from such investment property is less than the costs of acquisition and maintaining the property. This results in incurring in a loss in the transaction. This loss is then allowed by the Australian Taxation Office (ATO), to be set off against other assessable income of the borrower. The main intention of the tax authorities is to provide a buffer to the borrower and provide them with a tax relief so that they are able to cut down their losses (Choice, 2016). The overall tax effect is to set off the net rental loss arising out of the transaction with the other sources of assessable income source of the borrower so that there is a decrease in the overall tax burden of the borrower. This deduction i s provided as an incentive to the borrower according to the provisions of the ITAA 1997. If in any income year, the assessable income of an assessee is not sufficient to set off the loss, it is carried forward and adjusted with the income earned by the assessee in the next year ("Expenses you can claim | Australian Taxation Office", 2016). On the other hand, the ATO and the ITAA 1997 have rules and provisions for Capital Gains Tax related to investment properties. Tax concessions are provided to assesses in case of investment housing. When a property is held for 12 months or more and then sold, the capital gains arising out of such transactions are subject to 50% tax deductions. Negative gearing and capital gains tax regime combined together form a complete code of deductions that are provided by the government and the taxation authorities so that assesses are able to cut down their losses and decrease their overall tax burden ("Rental properties - avoiding common mistakes | Austral ian Taxation Office", 2016). The facilities of negative gearing and capital gains tax have a two-fold advantage that an individual is able to avail. First one being the ability to deduct the loss from rental property and the second is that of the 50% discount that can be availed in respect of capital gains tax. In negative gearing, the borrower is allowed to set off their loss every year against their assessable income. Therefore, the loss from investment property that is incurred during a year is allowed to be deducted during that year itself. Therefore, the assessee is able to take advantage of the negative gearing facility each year and lower his or her tax burden ("Fuel on Fire: Negative Gearing, Capital Gains and Housing Affordability", 2016). The second advantage here is that when such investment property is disposed off, deductions can be claimed from capital gains tax when such investment property is disposed off. The tax applicable in case of capital gains is much less than the normal income tax rates a pplicable to individuals. Therefore, it can be seen that an assessee is able to claim much deductions and concessions in case of negative gearing and capital gains tax. This is the main intention of the tax authorities so that individuals are able to lower their tax burden (Planners, 2016). The provisions of the ITAA 1997 and that of 1936 intend to provide an effective and efficient tax structure for the people of Australia. The legislative provisions provide a complete structure so that tax planning can be done effectively and people are able to plan about their tax burdens. Division 8 of the ITAA stipulates the deductions that can be availed by tax payers in order to lower their tax burdens ("INCOME TAX ASSESSMENT ACT 1997", 2016). This provides an ease to the tax payers and makes tax levy and collection easy with an intention to make it fair and transparent. The structure is so formulated that people are able to properly plan about their tax payments and the system makes sure tha t they collect what is owed to them ("Hot property: negative gearing and capital gains tax | Grattan Institute", 2016). The present story is somewhat different. The tax incentives provided by the ATO and the government are used in the wrong sense. In reality, the loss incurred in negative gearing gets set off against the tax incentive provided. People are resorting to more borrowing for taking advantage of the negative gearing arrangement. They are investing in property that does not fetch much income so that the costs can be covered (Milligan, 2007). This act is done intentionally so that they are able to get the tax incentive. Set offs are availed yearly until the property is disposed off. On the other hand, capital gains tax deduction can be availed when the property is sold. People are availing both these incentives in a wrong way that itself defies the intention of the tax authorities and the government. Easy access to finance for investment purposes has fuelled this phenomenon. People are availing more and more finance from banks and financial institutions in order to buy investment properties a nd taking advantage of negative gearing ("Rental properties 2013-14 | Australian Taxation Office", 2016). Often it is seen that same individual is buying two or three properties in order to lower their tax burdens. This matter is of serious concern as it has increased speculative activities in the housing sector and the real estate market. People are resorting to hedging actively that affects the secondary mortgage market and influences securitisation. The worst affected group is the first home owners who are still unable to provide a roof above their heads dur to the rising prices of housing and rental properties (News Sydney's housing affordability crisis for low income earners is spreading, 2016). Conclusion Property prices are soaring in Australia due to acute shortage of supply. This has allowed builders and seller to maintain a high price for their properties. In such a situation there is disparity between the level of income growth and the market price of houses and rental properties. In order to have a control of the situation, the government introduced several tax reforms in the form of negative gearing and capital gains tax concessions. The main intention of the tax authorities was to lower the overall tax burden of tax payers who have a just and fair cause. However, these tax incentives are being used in an unethical manner by the tax payers. People are engaging in speculative activities and intentionally investing in properties that are not able to provide adequate returns to cover the costs associated with the properties. People are borrowing more and more to invest in investment properties ("The positives of negative gearing", 2016). As a result, loans and debts are being rest ructured randomly by the banks and financial institutions. In order to have a full control of this situation, either tax incentives have to be discontinued or capital gains tax should be imposed on a yearly basis. People are getting resorting to investment in real estate through Super Funds where capital gains tax is not applicable to gains arising out of the sale of investment properties. Therefore, a difference is being created between disposable income and property prices. High prices are preventing common people from owing a house for residential purposes. In the given case scenario, Jai intends to sell his residential house property and buy another residential property and an investment property. He intends to take maximum advantage of the negative gearing process and the tax incentives that are available for capital gains made by him in the process of these transactions ("What to include in your assessable income | Australian Taxation Office", 2016). Therefore, there are two transactions that will attract tax legislations and accounting of the overall tax burden of Jai. We will be discussing theme respectively. Selling of the Residential Property A capital gains tax event occurs when a depreciating asset is sold or disposed off. Capital gains tax is not a separate tax but forms a part of the income tax of an individual. Capital gains tax is applicable to CGT assets when they are sold. A gain arises when a CGT asset is sold and the sale proceeds exceed the cost of the asset. House of Jai is considered to be a capital asset and the gains made while selling the property will be subjected to capital gains tax (Works, 2016). However, the ATO provides a few exemptions to the tax. One of which is the principal place of residence. When a residential house is sold or disposed off where the tax payer resides, it is exempted from the ambit of capital gains tax. Therefore, selling of the residential property by Jai will not attract any tax liability. Plan to Buy New Properties Jai wants to buy two properties. He has $200000 in hand and wants to borrow $150000 from his existing bank. The primary concern is the manner in which these monies are to be invested. The interest to be charged by the bank for $150000 is 5% pa. He has the following options in front of him. The first option involves utilising the cash in hand ($200000) for buying a residential property and the loan amount ($150000) for buying the investment property. In such a situation, he has to pay an yearly interest of $7500 and in order to avail the benefits of negative gearing he has to maximise his costs and such costs have to be less than the rental income that can be earned from the property. Therefore, this $7500 is the maximum costs that can be incurred by him. In the second option, the investment property will be bought with the cash and the remaining cash and loan amount will be used for buying the residential property. This will not give him much advantage as negative gearing is available only for investment properties that are bought with borrowed money. In this situation, the loan amount will be utilised for buying residential property. In this situation, the residential property is to be bought by utilising $100000 cash and $100000 loan amount. Therefore, only $50,000 will be used to buy the investment property. Therefore, in this situation, Jai will not be able to maximise his expenses with respect to the investment property. Thus, it can be inferred that he will be able to utilise the advantages of negative gearing by opting for the first option. References 2015, H. assisted, T. (2016).Action for Housing Affordability.Tenantsunion.org.au. Borrowing to invest and negative gearing - pros, cons, and how it works. (2016).Taxpayer.com.au. 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