If you are a conveyancer you may be aware of obligations requiring the lodgment of an Annual vacancy return and payment of the Annual vacancy fee for foreign owners of Australian residential property.

You could be impacted by the Tax Agent Services Act 2009 (TASA) if your clients are affected by these obligations.

This means you may need to register with the Tax Practitioners Board (TPB) when assisting your clients to meet their Annual vacancy fee compliance obligations.

Annual vacancy fee

The measures require foreign owners of residential dwellings who received approval for their purchase after 9 May 2017 to lodge an Annual vacancy fee return with the Australian Taxation Office (ATO). For dwellings not residentially occupied or genuinely available on the rental market for more than 183 days each year, foreign owners may be liable to pay a vacancy fee.

Returns must be lodged annually with the ATO and there are penalties for failing to lodge a return when required.

For more information, refer to the ATO website.

What does this mean for conveyancers?

Before assisting clients to meet their Annual vacancy fee requirements, conveyancers who are not registered with the TPB as a tax agent or BAS agent need to understand what they can or cannot do under the TASA.

A conveyancer does not need to be registered with the TPB if the services provided do not meet the definition of tax agent service (which includes BAS service).

In general terms, tax agent services (or BAS services) relate to:

• working out or advising about liabilities, obligations or entitlements of clients under a taxation law (or BAS provisions), or

• representing entities in their dealings with the Commissioner of Taxation,

where the client can be reasonably expected to rely on the service to satisfy liabilities or obligations, or to claim entitlements, under a taxation law (or BAS provisions).

Therefore, services where registration with the TPB is not required include, for example:

• the advice being provided is not related to a ‘taxation law’

• data entry, providing the data entry does not require the interpretation or application of a taxation law

• coding of transactions based on instructions provided by the client

• merely transposing information to the ‘Annual vacancy fee return’, and/or

• transmitting the ‘Annual vacancy fee return’ to the ATO.

In relation to the mere transmittal of the relevant forms, if your client asks you to complete and submit these forms to the ATO and you are not a registered tax agent, BAS agent or Australian legal practitioner, you need to make it clear to your client that you are only the transmitter of data to the ATO and not the provider of a tax agent service or BAS service.

Furthermore, you should advise that you can assist your clients with data entry only and you can undertake the following steps for them:

• enter client-provided information from a hard copy form into the ATO’s online environment (for example, data entry)

• transmit the client provided information you have entered into the ATO’s online environment.

Importantly, to provide the above assistance, you need to have appropriate procedures/processes in place to ensure that you are not regarded as providing a tax agent service or BAS service. Such procedures/processes should include, amongst others:

• provide a declaration to your client that they are required to sign advising that they have provided the information, authorise you to submit the forms and that the information provided to you is true and correct.

• you retaining, and providing to the client, a copy of the email confirmation that is sent out by the ATO once the first form is lodged. This contains all the critical information submitted in the first form.  

The TPB also recommends that in these circumstances a conveyancer should have an appropriately worded declaration to make it clear to your clients that you are not a registered tax agent or Australian legal practitioner, and if the client is seeking tax related advice to rely on in order to meet their tax obligations, they should seek advice from a registered tax agent or Australian legal practitioner. Ultimately, your clients need to be aware that you are simply undertaking a data entry role or that you are simply the transmitter of data to the ATO and not the provider of a tax agent service or BAS service.