New register of foreign ownership of Australian assets in force from 1 July 2023

A new register (Register) recording foreign ownership of Australian assets, whereunder foreign investors will be required to notify the Australian Taxation Office (ATO) within 30 days of certain investments in Australian assets being made, will be instituted from 1 July 2023.

The new register, administered by the Commissioner of Taxation, will consolidate and expand existing reporting obligations under The Register of Foreign Ownership of Agricultural Land Act 2015 and Foreign Acquisitions and Takeovers Act 1975 by requiring the following to be notified to the ATO within 30 days:

• Acquisitions by foreign persons of interests in Australian land, including certain leasehold interests and shares or units in Australian land corporations or trusts (regardless of the value thereof);
• Changes in the nature of interests held in land by foreign persons (e.g., residential land becoming commercial land);
• Acquisitions by foreign persons of interests (other than equitable interests) in exploration tenements, again regardless of value;
• Acquisitions by foreign persons of registrable water interests or a change to the nature of that interest;
• A foreign person takes an action (e.g., acquiring an interest in an entity or business) for which approval by the Foreign Investment Review Board (FIRB) was or should have been obtained; and
• A person (or entity) becoming a foreign person while holding an interest in Australian:
  • Land;
  • Exploration tenements;
  • Entities or agribusinesses for which FIRB approval would be required in the event of a new acquisition; and
  • A national security business (as defined by section 10A of the Foreign Investment Reform (Protecting Australia’s National Security) (National Security Business) Regulations 2020

The Register is established by Part 7A of the Foreign Acquisitions and Takeovers Act 1975 (Cth). It should be noted that the definition of ‘foreign person’ under section 4 of that legislation is broad and captures, for example, Australian subsidiaries of foreign corporations.

A foreign investor must give a registered notice to the Registrar to register an asset by using the ATO  Online services for foreign investors page. The Register will provide greater visibility of foreign investment in Australia and support information sharing across government. 

The Register will initially amalgamate existing registers, as the ATO already administers the existing agricultural land, residential land and water entitlements registers. These registers will be merged and consolidated to avoid duplication. 

The Register will be a post-acquisition recording system, recording actual foreign direct investments, rather than proposed acquisitions.

FOR MORE INFORMATION

To find out more, please get in touch with your local RSM office today.