Yang Pei Keng 24 Dec 2009 [revised]
23.10.2009 Budget Speech by PM
Our Prime Minister Najib Razak made his maiden 2010 Budget speech in Parliament on 23 October 2009. He indicated that the Real Property Gains Tax is to be re–imposed next year, with effect from 1 January 2009. On the issue of gains tax, the Prime Minister said:
“… the government proposes that a tax of 5% be imposed on gains from the disposal of real property from 1 January 2010. However, the existing tax exemption will be retained for gifts between parent and child, husband and wife, grandparent and grandchild. The exemption will also be given on disposal of a residential property once in a lifetime.”
The Second Finance Minister Ahmad Husni Hanadzlah clarified that the RPGT at fixed 5% would be imposed irrespective of the holding period and the category of the owner. “The RPGT for the first year is 5% and is the same for the second, third, fourth and fifth year,” he said when clarifying a news report in a local newspaper. [See the Sun, 2–12–2009]
Total exemption from payment of gains tax was introduced in 2007, about 2 ½ years ago. At the material time, the Inland Revenue Board issued a circular to the effect that gains tax was “abolished” effective from 1 April 2007, but the Exemption Order 2007 published in the government gazette only mentioned “exemption” from payment of gains tax.
In March 2007, the Bar Council Conveyancing Practice Committee sought clarification from the Ministry of Finance on the Exemption Order 2007. The Ministry gave a reply, using the word “pemansuhan” (abolition) in para 2(iv) of its letter to describe the exemption. The word “pemansuhan” (abolition) would mean that the Real Property Gains Tax Act had been abolished.
However, “exemption” from a piece of legislation does not amount to “abolition” of the legislation. Exemption from RPGT Act does not mean that the Act has been “abolished”. To say that ‘exemption’ is ‘abolition’ is an inaccurate and misleading statement.
Just after the introduction of the 2007 Exemption Order, I wrote an article entitled “Exemption of Real Property Gains Tax – effective from 1 April 2007”. I commented that it was inappropriate for IRB to use the term “pemansohan” (abolition) regarding the complete exemption of gains tax at the material time. I pointed out:
“It does not seem to be a permanent abolition; it is just a temporary measure of exemption, since the title of the Gazette Notification [PU(A) 146] merely indicates that it is an Exemption Order. An Exemption Order can be revoked at any time by the Minister at his sole discretion.” (See Info Johore Bar, November 2007 issue)
I also expressed the hope that “the Exemption Order is to stay for a long long time so that it amounts to abolition of the RPGT”.
Alas! The RPGT (Exemption) (No.2) Order 2007 is short–lived. Gains tax will be re–introduced with effect from 1 January 2010. This has verified the truth of my comments mentioned above.
In passing, one tax expert Dr Veerinderjit Singh echoed my view as expressed above. He too pointed out the distinction between ‘exemption’ and ‘abolition’ in his article “Tax thoughts: Real Property gains tax: Is it really gone?”, published in May 2007. He said: “…since the RPGTA was not abolished or repealed, it was likely that it may be brought back when the need arises and the timing is appropriate …”
Basic changes in the RPGT Act
The 2010 Budget speech indicated that the basic changes to the RPGT Act 1976 are as follows:
2. Minimum exemption of RM10,000 gain
3. Retention sum of 2% of the purchase price
4. 60 days to submit CKHT forms
5. To remit retention sum to IRB within 60 days
(see also Finance (No.2) Act 2009 coming into force on 1 January 2010)
1. Flat rate of 5% gains tax (with effect from 1.1.2010)
By virtue of the RPGT (Exemption) (No.2) Order 2007, the government has allowed complete exemption of gains tax since 1 April 2007. No gains tax is payable for about 2 ½ years (1.4.2007 – 31.12. 2009). But such full exemption of gains tax will end this year.
Before 1 April 2007, the rates of real property gains tax (RPGT) payable on disposal of real property varied from 0% to 30%, depending on the year of disposal. In other words, the RPGT rates would depend on the withholding period after the property had been acquired. The longer the property was kept, the lower the gains tax rate was payable. For an individual (unlike a company) after a withholding period of 5 years and beyond, no gains tax was payable.
According to the 2010 Budget speech, with effect from 1 January 2010, a flat rate of 5% of the gain will be imposed on the disposal of any real property, regardless of the year of disposal, and no matter how long you have kept the property. The year of disposal is no longer relevant.
For example, if a house bought for RM1million earlier on is to be sold for RM3 million in 2010, the gain of RM2 million will attract 5% gains tax (not taking into account deductible expenses). Gains tax amounting to RM100,000 is payable.
[That is, RM2 million x 5% = RM100,000]
5% gains tax will be imposed on any disposal of real property on or after 1 January 2010. But any disposal by the end of the current year of 2009 (i.e. by 31 December 2009) will not be affected, and therefore, will not be subject to gains tax.
In other words, 5% gains tax will only apply to any disposal from next year (2010) onwards. Any disposal within this year 2009 will not attract any gains tax.
The RPGT (Exemption) Order 2009 [PU(A) 376/2009] is introduced to give effect to such flat rate of 5% gains tax on any disposal.
Some confusion arose after the Budget speech
The Star reported that there was some confusion after the budget announce–ment last Friday, 23.10.2009 . “Based on the Finance Bill … disposal within 2 years of acquisition will be taxed 30%; in the 3rd year, it will be 20%, in the 4th year 15%, while disposal within 5 years and beyond, will still be subject to 5% tax.” (A similar report also appeared in the Straits Times, Singapore dated 27 October 2009.)
These reports seem to be at variance with the budget speech made by our Prime Minister on the issue of real property gains tax. [See The Star dated 27–10–2009.]
However, the Star also reported that:
“The Ministry of Finance has issued a press release on the matter and explained that a 5% rate of RPGT, irrespective of holding period and category of tax payer, individuals and companies, will be introduced through a ministerial exemption order. …”
What is the date of ‘disposal’?
One pertinent question relating to the gains tax is: What is the date of “disposal” ? The date of disposal of real property is the date of the sale and purchase agreement. If there is no agreement, then the date of the ‘transfer’ will be taken into account.
If the agreement is a conditional contract, the date of approval or satisfaction of the condition will be treated as the date of disposal (see amendment to RPGT Act, Schedule 2, para 16).
2. Minimum exemption of RM10,000 gain or 10% of the gains
Before 1 April 2007, the minimum exemption was only RM5,000 (see Act 328, s.30, effective from 1.1.1986). It is now increased to RM10,000.
The first RM5,000 of the gains or 10% of the gains (whichever is higher) was exempt from payment of gains tax. In other words, the minimum exemption was RM5,000.
If the gain was more than RM5,000, a larger amount might be exempt from gains tax. For example, if the gain was RM100,000, the amount exempt from gains tax would be RM10,000 [i.e. RM100,000 x 10% = RM10,000].
(i) If the gain is more than the minimum exemption of RM10,000 …
Under the new Order, the minimum exemption is increased from RM5,000 to RM10,000. Therefore, if the owner of a shophouse sells it in 2010, and has made a gain of RM200,000. 10% of the gain will be RM20,000 (i.e. RM200,000 x 10% = RM20,000).
The sum of RM20,000 is higher than the minimum exemption of RM10,000. He is therefore entitled to an exemption of the higher amount of RM20,000. [Note: Deductible expenses have yet to be taken into account in the calculation. Such expenses reduce the amount of gains tax payable.]
(ii) If the gain is less than the minimum exemption of RM10,000 …
Take another example: where 10% of the gains is less than the minimum exemption of RM10,000. Say, the owner of a residential house sells it in January 2010, and has made a gain of RM50,000. 10% gains tax will be RM5,000 only [i.e. RM50,000 x 10% = RM5000].
10% of the gain (i.e. RM5000) is less than the minimum exemption of RM10,000. The seller is therefore entitled to the minimum exemption of the higher sum of RM10,000, and not merely RM5,000 (i.e. 10% gains).
3. Retention sum of 2% of the purchase price
For purposes of paying gains tax, the purchaser (or acquirer) is required to withhold 2% of the purchase price and remit it to the Director General of Inland Revenue Board within 60 days of the disposal. For example, if the purchase price is RM1000,000, 2% thereof will be RM20,000. The sum of RM20,000 has to be forwarded to the IRB within 60 days of the disposal.
Under the original provision of the RPGT Act, the purchaser was to retain 5% of the purchase price. With effect from 1.1.2010, the retention sum is reduced from 5% to 2% of the purchase price.
4. 60 days to submit CKHT forms – new s21B(1)
Under the previous provision of the 1976 RPGT Act, the CKHT forms must be submitted to the Inland Revenue Board within 1 month of the date of disposal.
But pursuant to the new Exemption Order 2009, the CKHT forms must be furnished to the IRB within 60 days of the date of disposal. In other words, the time frame for submitting the CKHT forms has been extended from 1 month to 60 days.
Practical experience tells us that it is quite impossible to collect all the relevant documents to be filed together with the RPGT forms within a short period of 1 month. Failure to file the form within the prescribed period will incur a penalty.
5. Purchaser to remit 2% retention sum to IRB within 60 days – new s21B
Previously, for practical purposes, the seller’s solicitor was to keep the 5% retention sum until he received the certificate of clearance from the Inland Revenue Board.
But, under the new amendment, the purchaser is to retain only 2% of the purchase price, and it is to be remitted to the Inland Revenue Board within 60 days of the disposal. Failure to remit within 60 days of the disposal will incur a 10% penalty: s21B(2).
The 2% retention sum can only be remitted to the IRB after completion of the transaction in 3 to 4 months’ time, certainly not within 60 days of the date of the SPA.
Speaking from practical experience, it is quite impossible to remit 2% of the purchase price within 60 days of the date of disposal. The date of disposal is the date of the SPA if there is a sale and purchase agreement. Payment of the balance of the purchase price will only be made on the date of completion, which is 3 to 4 months after the signing of the SPA.
In other words, completion usually takes place at least 3 to 4 months after the signing of the agreement. Gains tax needs to be paid only after the contract has been performed, and if there is a gain. If the 90% balance of the purchase price is not paid by the completion date, the deal does not go through, and there is no gain, and no gains tax is therefore payable.
One may argue that the 2% retention sum can be paid out of the initial 10% deposit to be paid upon the signing of the agreement. However, to insist upon the purchaser remitting 2% retention sum out of the initial 10% deposit received by him is far from being reasonable. This is because the sale and purchase transaction may not go through, and if the deal is called off, there is no gain, and therefore no gains tax is payable.
In such circumstances, the vendor will incur the unnecessary trouble of having to write to IRB for the refund of the 2% retention, since it constitutes part of the initial 10% deposit payable to the vendor.
But the new amendment to the RPGT Act requires the purchaser to pay 2% of the purchase price within 60 days of the signing of the agreement, that is, before the completion date and the contract has yet to be performed. No completion, no gain.
The initial 10% deposit towards the purchase price has to be paid to the vendor as earnest money and that is the consideration for entering into the sale and purchase contract. The 2% of the purchase price ought not to be deducted from the initial 10% deposit paid as consideration under the contract.
A sensible solution is to allow the purchaser to remit the 2% of the purchase price after the completion when the purchaser has paid up the final balance of the purchase price. It follows that IRB should allow remittance of the 2% of the purchase price on completion when the deal has gone through.
2% purchase price will usually exceed 5% gains
In view of the present economic crisis, a retention sum of 2% of the purchase price, will exceed the 5% of the gains in most of the cases, For example, if the purchase price of a residential house is RM400,000, and the gain is RM100,000, the difference between the 2% purchase price and the 5% gain is obvious:
2% of RM400,000 purchase price | = | RM8,000 |
5% of RM100,000 gains | = | RM5,000 |
Difference (excess) | RM3,000 |
In fact, under the existing falling market, because of the economic meltdown, most of the sales of real property will probably incur losses rather than making any gain. That may explain why the retention sum is reduced from 5% to 2% only of the purchase price.
Impractical for IRB to retain 2% of the purchase price
Before 1 April 2007, in normal practice, it was usually agreed between the parties that the seller’s solicitor was to keep the retention sum of 5% of the purchase price, pending the outcome of the assessment by the Inland Revenue Board of the gains tax payable (though the law says that purchaser was to retain the sum).
Once the assessment had been made, the seller’s solicitor would immediately pay the Inland Revenue Board (IRB) the exact amount of gains tax due, and would refund any excess of the retention sum forthwith to the seller. So far, such an arrangement proved to have worked well.
However, the purchaser is now required to remit the 2% of the purchase price to the Inland Revenue Board within 60 days of the disposal, on pain of incurring 10% penalty for late remittance. This may give rise to undesirable consequences.
As soon as the purchaser’s solicitor has remitted on his client’s behalf the 2% retention sum to the Inland Revenue Board, the matter is off his hands. Among government departments or statutory bodies, it is generally believed that red tape and delay may be involved in the refund of excess payment to the seller after due assessment of the actual amount of gains tax payable.
In time to come, the seller would have to rely on the good offices of the Inland Revenue Board for the refund of the excess payment.
For practical purposes, it is more appropriate for the seller’s solicitors to keep the 2% retention sum pending assessment of the gains tax due. Solicitors will see to it that the excess payment will be refunded to their clients forthwith or within reasonable time, because solicitors are bound by the rules and rulings of the legal profession.
Pursuant to the Solicitors’ Accounts (Depositf Interest) Rules, 1990 and the Bar Council Rulings, solicitors have to pay interest to their clients for keeping in their custody the retention sum. If there is undue delay in attending to the refund, the solicitors are liable to disciplinary proceedings.
On the other hand, if IRB fails to attend to the refund diligently, no interest will be payable to the seller for late refund of the excess, to say nothing of disciplinary proceedings.
Numerous comments on the re–imposition of RPGT
The re–introduction of RPGT in the midst of economic crisis has drawn numerous comments. Some of these comments are as follows:
“There has been no speculation. Why re–impose it now?”
“If the intention is to curb unhealthy speculation which is unlikely given the current market condition, then it should focus on possible speculators and not impose RPGT across the board.”
The statutory body governing real estate agents “view the RPGT as punitive to owners of existing housing units who may have bought them decades ago. They may want to sell to upgrade or to relocate. With the tax, it’s like buyers are fined for selling their homes.”
“It’s also counter–productive to the ongoing efforts to stimulate the property market. Reinstating it after a brief exemption period of less than three years will adversely impact the fragile confidence of local and foreign investors.
“The move also reinforces Malaysia’s infamous ‘flip–flopping’ policies. On the one hand, we are wooing foreign direct investments. On the other hand, we are sending contrasting signals.”
“… the market reacted positively to the RPGT waiver in 2007 with increased sales.” Some “negative impact” is expected.
“The re–imposition seems to be an income–bearing revenue stream for the government instead of being an anti–speculative tool.”
The above statements are gleaned from an article published in the Star dated 25 October 2009.
Conclusion
The re–imposition of real property gains tax in the midst of the present economic recession, does not seem to be in line with the government policy of encouraging investments. It may in fact discourage some would–be local and foreign investors from investing in landed properties in our country.
The purpose of imposing gains tax under the RPGT Act 1976 on any disposal of real property is to curb speculative activities in the property sector.
But any disposal after withholding the property for a certain number of years (say 5 years or so) is certainly no “speculation”. It can hardly be described as “speculation”. It is in reality an investment. In the circumstances, such disposal ought to be exempt from payment of gains tax. It is far from being reasonable to impose gains tax on investments.
The Straits Times in Singapore on 27–10–2009 reported that a 2010 Post Budget Dialogue was jointly organized by several bodies (including the Malaysian Economic Association and University of Malaya’s Faculty of Economics and Administration) and supported by Standard Chartered Malaysia Berhad.
After the Dialogue, Siti Halimah Ismail, Under Secretary of the Finance Ministry (Tax Analysis Division) revealed to the reporters that the government is expected to collect some RM500 million from the real property gains tax in 2010, while RM240 million will be lost in individual income tax, due to the reduction of 1% of income tax, from 27% to 26%.
It may be difficult not to come to the conclusion that, as far as the re–imposition of the real property gains tax is concerned, it is more a revenue–collecting exercise rather than an attempt to curb speculation.
As to the rates of gains tax payable, if there is confusion in the drafting of the relevant legislation, it is for the Ministry of Finance to see to it that the Exemption Order 2009 and the Finance Act (No.2) 2009 are amended accordingly, so that they are in line with the policy statement made by the Prime Ministers on the Budget Day.
P.S.
There was a turn of event recently. The Star on 24 December 2009 carried a piece of news with the heading: “RPGT to apply only for sales within five years of purchase”.
The move is a boon to all property owners, becauseno gains tax is now payable after 5 years of the purchase of any real property. It is a departure from the 2010 Budget speech. The Star reported:
“The real property gains tax (RPGT) announced during the 2010 Budget will now only apply to property sold less than 5 years from its purchase. Datuk Seri Najib Tun Razak said.”
“The Prime Minister said the 5% tax would now only be imposed on property sold within 5 years of date of purchase … the decision would cause the government to lose about 200 mil in revenue. adding the move was made following appeals from the Federation of Chinese Associations of Malaysia (Hua Zong) and the business sector”. (Hua Zong is the national umbrella body for Chinese guilds and associations).
On the same day, Malaysiakini also carried a similar piece of news with the heading: “Real property gains tax only those sold within 5 years”. The announcement was made during the Prime Minister’s speech at dinner in Putra –jaya. The first page of the Chinese newspaper Sin Chew Jit Poh also gave it a brief coverage.
However, the New Straits Times on the same day made a big blunder in its press report, carrying a misleading heading: “Property gains tax only after 5 years of ownership” [emphasis added] .
Paragraph 1 of the report said: “The real property gains tax next year will only be applicable to properties disposed of after five years of ownership.” [Emphasis added] … It further said: “The houseowners, in return, would also benefit as their property value would have increased after 5 years.” It is rather surprising how such misreporting could have taken place.
The present departure from the 2010 Budget speech reminds us of the earlier move to waive the mandatory tests on 15–year or older vehicles, as announced in the 2010 Budget. These moves are certainly most welcome.
The impression created is that our Prime Minister seems to be amenable to sensible suggestions from the populace, keeping in mind the next General Election which may be held by 2013 at the latest.
24 December 2009