The recent decision of Commissioner of Taxation of the Commonwealth of Australia v Vijay Balasubramaniyan [2022] FCA 374 puts foreign investors on notice that where they fail to advise the Foreign Investment Review Board (FIRB) of their investments in Australia, they may be subject to significant cash fines. This is the first ruling since the Foreign Acquisitions and Takeovers Act 1975 (Cth) was rewritten in 2015 to introduce civil penalties.
Facts of the case
Between July 2016 and April 2018, Vijay Balasubramaniyan spent more than $1.4million on three residential properties and a block of land in Melbourne’s west.
Mr Balasubramaniyan admitted to four contraventions of section 94 of the Act. Section 94 provides that:
A foreign person who proposes to take a notifiable action that is a residential land acquisition must not take the action if the foreign person has not given a notice relating to the action under section 81.
Mr Balasubramaniyan is a foreign person as he is a temporary resident. For the purposes of the Act, a person will be a foreign person where:
- (a) the individual has actually been in Australia during 200 or more days in the period of 12 months immediately preceding that time; and
- (b) at that time:
- (i) the individual is in Australia and the individual’s continued presence in Australia is not subject to any limitation as to time imposed by law; or
- (ii) the individual is not in Australia but, immediately before the individual’s most recent departure from Australia, the individual’s continued presence in Australia was not subject to any limitation as to time imposed by law
The notifiable action Mr Balasubramaniyan took was acquiring an interest in Australian residential. Where an action is a notifiable action, a foreign person is obliged to inform the Treasurer.
Mr Balasubramaniyan also breached section 95 of the Act which provides that:
A foreign person who is a temporary resident must not hold an interest in more than one established dwelling at the same time.
Justice Beach, of the Federal Court of Australia, ordered that Mr Balasubramaniyan pay a pecuniary penalty totalling $250,000 to the Commonwealth of Australia for the following breaches to the Act, in addition to the Commissioner of Taxation’s costs.
At the time Mr Balasubramaniyan contravened the Act, the maximum penalty for contravention is the greater of 10% of the consideration for the residential land acquisition or 10% of the market value of the interest in the relevant residential land. Had Mr Balasubramaniyan contravened the Act more recently (after 1 January 2021) the maximum penalty would increase to 25% with the addition of the alternative maximum penalty of the amount of the capital gain that was made or would be made on the disposal of the interest in the relevant residential land.
Take home
It is important to be mindful of your obligations under the Act when considering investment in Australia. This includes Australian land, Australian businesses and shares in Australian companies.
Foreign investment and FIRB compliance expertise
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