Real Property Gain Tax

 
 

 

Basis Of Taxation
Disposer's Responsibilities
Acquirer's Responsibilities
Exemptions Available For Real Property Gains Tax
A No Loss And No Gain Situation
Several Transactions Where Disposal Price Is Deemed Equal To Acquisition Price
Example To Illustrate Calculation Of Real Property Gains Tax
Rates Of Tax (Real Property Gains Tax)

Stamp Duty

 

NO Property Gain Tax

(Currently Exempted)

 

Basis Of Taxation (CURRENTLY EXEMPTED)

The chargeable gains arising from the disposal of any land situated in Malaysia and any interest, option or other right in or over such land or the disposal of shares in a 'real property company' is subject to Real Property Gains Tax.


 
 
Disposer's Responsibilities (CURRENTLY EXEMPTED)
 

The disposer of a real property has to submit the following within 30 days from the date of disposal of the asset:

1. Completed Form CKHT 1;

2. Copies of stamped Sale and Purchase Agreement or Form 14A (memorandum of transfer) to prove the acquisition and disposal of the asset;

3. Copy of grant/title deed (if any);

4. Copies of bills and receipts for expenses claimed. (in case of companies or non-citizen and non-permanent resident individuals, details not required if asset is disposed in the sixth or subsequent year from the date of acquisition).


 

 
Acquirer's Responsibilities (CURRENTLY EXEMPTED)
 

An acquirer has to submit the following within 30 days from the date of disposal of the asset:

1. Completed CKHT 2 forms;

2. Copy of stamped Sale and Purchase Agreement or Form 14A (memorandum of transfer) to prove the acquisition;

3. Copy of grant/title deed (if any).

Acquirer (or his solicitor) is also required to retain the whole of the consideration monies or a sum not exceeding five percent (5%) of the total value of the consideration whichever is the lower, until he receives clearance (Form CKHT 4 or CKHT 5) from the Inland Revenue Board.


 

 
Exemptions Available For Real Property Gains Tax (CURRENTLY EXEMPTED)
 

(i) A gain arising on disposal prior to 7 November 1975, the date of coming into force of the RPGT Act 1976.

(ii) An amount of RM5,000 or 10% of the chargeable gain, whichever is greater, for each disposal of a property by an individual.

(iii) A gain accruing to the Government, a State Government or a local authority.

(iv) A once in a lifetime exemption on a gain accruing to an individual who is a citizen or a permanent resident or to a husband and wife in respect of the disposal of one private residence.

(v) A gain equal to to the amount of estate duty payable where the disposer is compelled to dispose the property in order to pay the estate duty.



 

 
A No Loss And No Gain Situation (CURRENTLY EXEMPTED)
 

Applicable only to companies (as defined in the RPGT Act 1976) for the following situations:-

(i) Transfer of asset between companies in the same group to bring about greater efficiency in operation for a consideration consisting of not less than 75% syer in the transferee company and the balance of a money payment.

(ii) Transfer of asset between any companies for any consideration in any scheme of reorganisation, reconstruction or amalgamation whereby the transferee company is being restructured to implement any such scheme in compliance with Government policy on capital participation in industry.

(iii) Distribution of asset by a liquidator of a company and the liquidation of the company was made under a scheme of reorganisation, reconstruction or amalgamation whereby the transferee company is being restructured to implement any such scheme in compliance with Government policy on capital participation in industry.



 

 
Several Transactions Where Disposal Price Is Deemed Equal To Acquisition Price (CURRENTLY EXEMPTED)

(i) Transfer of assets between spouses.

(ii) Gifts made to the Government, State Government, local authority or a charity exempt from income tax.

(iii) Disposal of an asset as a result of a compulsory acquisition under any law.

(iv) Disposal of an asset by a person to an Islamic Bank under a scheme where that person is financed by such bank in accordance with the Syariah.



 

 
Example To Illustrate Calculation Of Real Property Gains Tax (CURRENTLY EXEMPTED)

 

Disposal Price on 10.01.2000

 

300,000

 

Less: Renovation/extension costs

20,000

 

 

Legal fees

3,000

23,000

277,000

Acquisition Price on 15.04.1996

 

200,000

 

Add: Duty stamp paid

3,000

 

 

Legal fees

2,500

5,500

205,500

 

 

 

71,500

Less: Exemption of RM5,000 or 10%of the chargeable gain, whichever is greater

 

 

7,150

Chargeable gain

 

 

64,350

Tax on RM64,350 @ 15% = RM9,652.50

Rate of tax 15% for disposal in the fourth year after the date of acquisition.


 

 
Rates Of Tax (Real Property Gains Tax) (CURRENTLY EXEMPTED)
 

CATEGORY OF DISPOSAL

COMPANY (%)

INDIVIDUALS & OTHER PERSON (%)

Disposal within 2 years

30

30

Disposal in the 3 rd year

20

20

Disposal in the 4 th year

15

15

Disposal in the 5 th year

5

5

Disposal in the 6 th year and subsequent years

5

0

The above rates apply for disposals on or after 27 October 1995.

An individual who is not a citizen and not a permanent resident is subject to the following rates:-

CATEGORY OF DISPOSAL

RATE OF TAX (%)

Disposal within 5 years after the date of acquisition of the chargeable asset

30

Disposal in the 6 th and subsequent years after the date of acquisition

5

These rates apply for disposals on or after 17 Oktober 1997.

 

Source: http://www.hasil.org.my

 

 

STAMP DUTY

Types of Duty

The Stamp Act 1949 provides for:-

The imposition of Ad Valorem Duties (that is, according to the value) on:

(i) Instruments of transfer (implementing a sale or gift) of property including marketable securities (meaning loan stocks and shares of public companies listed on the Kuala Lumpur Stock Exchange), shares of other companies and of non tangible property, for example, book debts, benefits to legal rights and goodwill;

(ii) Instruments creating interests in property, for example Tenancies and Statutory Leases;

(iii) Instrument of security for monies including instruments creating contracts for payment of monies or obligation for payment of monies (generally described as "Bond");

(iv) Certain capital market instrument, for example, Contract Notes and

The Imposition of Fixed Duties on

(i) A number of other legal, commercial, mercantile or capital market instruments, for example, Power or Letter of Attorney, Articles of Association of a Company, Promissory Notes, Policy of Insurance etc; and

(ii) A duplicate or a subsidiary or a collateral instrument when it can be shown that the original or principal or primary instrument has been duly stamped.

Determination Of Liability

(i) The first step is to identify the class of instrument under which a particular chargeable instrument may fall into. In the case of standard instruments, the rule in classification of instruments is that the real and true meaning of the instrument is to be ascertained, that the description of it given in the instrument itself by the parties is immaterial. Whereas in the case of non-standard instruments, the substance of the instrument, as construed by examination of the rights and obligations created and not its FORM will determine its classification. Examples where this RULE would apply include instruments effecting divestment of rights or interests in property by way of a " Declaration of Trust" or a "Deed of Family Arrangement" or release on "Sale" or by way of "Gift" or by way of "Security".

(ii) The second step involves statement of liability of standard instruments where an instrument is liable to stamp duty within two different categories or heads. It is provided that distinct matters including separate considerations shall be separately charged.

(iii) The third step involves non-standard instrument which by its classification will be liable to ad valorem duty. This instrument would require examination and when appropriate, measurement of the value of the consideration, that is, the price of the promise or act to be performed by the instrument.

The major principle in the application of the law on stamp duties is that
the subject matter of tax is the INSTRUMENT and not the TRANSACTION.

Examples Of Instruments Liable To Stamp Duty

Purchase Of Property
Tenant And Landlord
Person Receiving Financing



Purchase Of Property

Business Undertaking

In the case of purchase of any BUSINESS UNDERTAKING, the contract of sale and purchase is chargeable to ad valorem duty on the price relating to goodwill, debt and other chose-in action. The rate of duty is the same as that of IMMOVABLE PROPERTY.

Immovable Property

The prescribed rate of duty is as shown below. The duty at this rate is also payable where the instrument of transfer constitutes a DEED OF ASSIGNMENT executed on sale or gift of the contractual interest on the property.

-On the first RM100,000:

RM1.00 for every RM100 or fractional part of RM100.

-On any amount in excess of RM100,000 but not exceeding RM500,000:

RM2.00 for every RM100 or fractional part of RM100.

-On any amount in excess of RM500,000
RM3.00 for every RM100 or fractional part of RM100.

Stock, Shares or Marketable Securities

The prescribed rate of duty is RM3.00 for every RM1,000 or fractional part of RM1,000 on the price or value thereof on the date of transfer, whichever is the greater.

Tenant And Landlord

-The lease or tenancy instrument which secures annual rent not exceeding RM2,400 is EXEMPTED from duty and presentation of these instruments at a stamping office or centre is not necessary.

-The prescribed rate of duty on the instrument which secures annual rent exceeding RM2,400 is as follows:

(For every RM 250 or part thereof in excess of RM2, 400)
When the lease is for a period Duty Rate
Not exceeding one year RM1.00
Exceeding one but not exceeding three years RM2.00
Exceeding three years or for any indefinite period RM4.00

(For every RM250 or part thereof in excess of RM2,400

-If the consideration for tenancy constitutes or includes a PREMIUM, additional duty is chargeable and it is calculated on the amount of the premium at the rate chargeable on immovable property.

-If the lease provides for differential rent, please contact The Deputy Collector of Stamp Duty for further information.
 

Person Receiving Financing
Where the undertaking for discharge of a debt is:

-by way of PROMISSORY NOTE, the duty on the note is RM10.00 irrespective of whether it is executed in favour of a commercial bank, merchant bank or borrowing company or otherwise. The stamping must be completed BEFORE the instrument is executed.

-secured by way of mortgage, charge, debenture and others, the duty on the principal security is calculated at the rate of RM 5.00 for every RM 1000.00 or part thereof.



Time Of Stamping Instruments

Instruments executed in Malaysia
In general all instruments executed in Malaysia should be stamped on or before the time of execution.

Instruments executed out of Malaysia
Instruments other than cheques or promissory notes must be stamped within 30 days after it has first been received in Malaysia.

Cheques or notes drawn out of Malaysia
Cheques or promissory notes drawn or made out and brought into Malaysia before it is stamped must affix the proper adhesive stamp before presenting the same for acceptance or payment or endorses transfers or otherwise negotiates the same in Malaysia.

Stamping of documents after executions
In general, any unstamped or insufficiently stamped instrument excluding cheque or promissory note drawn or made within Malaysia may be stamped after execution on payment of the unpaid duty, if the instrument is presented for stamping;

-Within 30 days of its execution if executed within Malaysia or;

-Within 30 days after it has been first received in Malaysia if it has been executed out of Malaysia


Adjudication of Instruments

Purpose of adjudication
An application to determine the amount of duty chargeable on any executed instrument can be made to the Collector. For this purpose the Collector may require that the instruments be furnished together with an affidavit or other evidence. The Collector may refuse such application until the required instrument and evidence have been furnished accordingly.

The purpose of adjudication is to protect the parties to the contract in respect of the admissibility of the instrument as evidence in court during a civil proceeding. An instrument which is not duly stamped is not admissible in court as evidence.

Adjudication Of Instruments
The fee payable for adjudication of an instrument is RM10 ( with effect from 1st January 1996 )


Responsibility Of Company Secretary / Registrar

Section 52(1) of The Stamp Act 1949 PROHIBITS registration, acceptance or authentication of any instrument which has not been duly stamped.

If your duties include registration, acceptance or authentication of any instrument including share transfer and DEED OF ASSIGNMENT, contact the Deputy Collector of Stamp Duty if in doubt as to whether fixed duty or ad valorem duty is payable on the instrument .

Failure to comply with the provisions of this section is punishable under Section 69(2) with a fine not exceeding RM1,500.



Responsibility Of Solicitors

If in doubt of any technical matters or procedures, please contact The Deputy Collector of Stamp Duty for clarification. The clerk or office boy SHOULD NOT BE INSTRUCTED to represent your firm in technical matters and procedures regarding stamping.


Penalty

An instrument may be stamped within 30 days of its execution if executed within Malaysia or within 30 days after it has been first received in Malaysia if it has been executed outside Malaysia.

If it is not stamped within the period stipulated, a penalty of

(a) RM25.00 or 5% of the deficient duty, whichever is the greater, if stamped within 3 months after the time for stamping;

(b) RM50.00 or 10% of the deficient duty, whichever is the greater, if stamped after 3 months but not later than 6 months after the time for stamping;

(c) RM100.00 or 20% of the deficient duty, whichever is the greater, if stamped after 6 months from the time for stamping;

may be imposed

(the above rates are effective from 1/1/2003)



Method of Payment

Payment may be made in the following manner:-

(i) Cash (if the duty does not exceed RM100) or

(ii) Revenue Stamp (if the duty does not exceed RM500) or

(iii) Money Order, Solicitor's Cheque or Bank Draft,made payable to the Deputy Collector of Stamp Duty and sent together with the relevant instrument to the stamp duty office by hand or through registered post.


Relief From Stamp Duty

Relief may be given pursuant to:

(i) Section 15 Stamp Act 1949


(ii) Section 15A Stamp Act 1949


RECENT AMENDMENTS TO THE STAMP ACT 1949

(With effect from 1 January 2001)

(i) All fixed duty documents (other than cheques, Articles of Association of a company, Memorandum of Association of a company) are subject to duty of RM10.00.

(ii) All documents constituting a Charge or Mortgage, Agreement for a Charge or Mortgage (including that under the Syariah), Bond, Covenant, Debenture etc. being the principal security for the payment or repayment of money are subject to duty of RM5.00 for every RM1,000.00 or part thereof.

(iii) All documents being the security for payment or repayment of money made for the purpose of pursuing higher education in higher educational institutions are subject to duty of RM10.00

 

The amendment of the First Schedule of the Stamp Act 1949 came into effect on Jan 1 2009 this year, where it stated that all “bonds, covenant, loan, services, equipment lease agreement of any kind whatsover” are chargeable with duty at the rate of RM5 for every RM1,000, or part thereof - which is effectively 0.5% of the contract value.   updated 8/6/2009

 

 

 

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