Matters to be discussed:
(i) Definition of 'Real Property', 'Land' and 'Gain'.
(ii) Computation of Chargeable gain
(iii) Disposal price
(iv) Enhancement/ preservation expenses
(v) Year of assessment
(vi) Allowable loss
(vii) Conditional Contract
(viii) Inter-company transfer of shares under Para.17
(ix) Transfer of fixed assets into stocks
(x) No-gain-no-loss transaction
(xi) Real property Company shares
(xii) Definition of Real Property Company (RPC)
(xiii) When does one determine whether a controlled company is and RPC?
(xiv) When does one re-examine whether a controlled companies continues
to be an RPC?
(xv) Once RPC shares, always RPC shares.
(xvi) Acquisition date.
(xvii) RPGT treatment.
(xviii) Acquisition price.
(xviv) Withholding tax at source.
(xviv) Exemptions where the disposal is made after 5 years.
(xx) Exemption of the difference between the appropriate rate and 10% or 5%.
_______________________________________________________________
(i) Definition of 'Real Property', 'Land' and 'Gain'.
1) Real property = Any land situated in M'sia, and
Any interest, option or other right in or over such land.
2) Land:
- Surface of the earth and all substances therein
(Include clay deposits with commercial value for the making of brick
Found on the land)
- Earth below the surface and substance therein
(The land is found to contain oil, minerals or other valuable substances)
[The gross value of such land, include the value of deposits = Disposal
value subject to RPGT]
- Buildings on land or anything attached to land, and anything permanently
fastened to anything attached to land.
(The land, building erected, air-conditioning systems, solar panels etc)
- Standing timber, trees, crops and vegetation growing on the land.
(If teak trees or rice or any crops are planted on the land = Part of land)
(If crop is felled/ harvested and sold, it doesn't not constitute part of land)
- Land covered by water.
(Lakes, rivers or disused mining pool on it would include water bodies)
3) Gain = Not be a gain or profit that is chargeable to or exempted from inc tax
under ITA. (Exclude from being 'inc' before subject to RPGT)
(ii) Computation of Chargeable gain
1) S.7 of the RPGT Act - If disposal price > acquisition price, there is a
chargeable gain.
(iii) Disposal price
1) Para.6 of Schedule 2 define disposal price.
2) Disposal price = Sales considerations of disposal of the asset - Exp incurred
on the asset after its acquisition (To enhance or preserve
the value of the asset)(In establishing, preserving or
defending his title to, a right over the asset) - Incidental
costs to the disposer of making the disposal.
[The expenses are deducted from sales px, rather than adding it to the
purchase cost of the asset(Normal accounting approach)]
(iv) Enhancement/ preservation expenses
1) Para 5(1), Sch.2(a) - The amount of any expenditure wholly and exclusively
incurred on the asset at any time after its acquisition
(For the purpose of enhancing and preserving the value
of the asset) = Being exp reflected in the state of nature
of the asset at the time of the disposal.
(If acquired property comprise land & building, Total cost = Acquisition cost)
(If acquired property comprise only land, and building is subsequently erected,
Enhancement and preservation costs = Reflected in the state of the asset at
time of disposal)
2) Example 1:
A piece of land was acquired at RM100k on 1/2/2009, legal and stamp duty
of RM2.5k. House was constructed on the land in 2010 at a cost of RM300k.
On 1/12/2011, land with building was disposed of for RM500k. The disposer
paid RM30k to the real estate agent for the sale.
Disposal px = Sales px - Enhancement cost - Incidental cost
= RM500k - RM300k - RM30k
= RM170k
Acquisition px = Purchase cost + Incidental cost
= RM100k + RM2.5k
= RM102.5k
Chargeable Gain = Disposal px - Acquisition px
= RM170k - RM102.5k
= RM67.5k
3) Example 2:
A piece of land was acquired at RM100k on 1/2/2009, legal and stamp duty
of RM2.5k. House was constructed on the land in 2010 at a cost of RM300k.
On 1/5/2011, house was demolished. On 1/11/2011, the land(vacant) was
disposed of for RM500k. Disposer paid RM30k to the estate agent for the
sale.
Disposal px = RM500k - RM30k = RM470k
(House demolished = Enhancement cost cannot be included)
Acquisition px = RM100k + RM2.5k = RM102.5k
Chargeable gain = RM470k - RM102.5k = RM367.5k
(v) Year of assessment
1) S.10 of RPGT Act - YA is based on the corresponding calendar yr.
(YA 2011 = 1/1/2011 to 31/12/2011)
[Bear in mind when considering the absorption of allowable loss.]
(vi) Allowable loss
1) Allowable loss from one transaction = May be set-off against another
transaction that yields a chargeable gain
(When there are >1 transactions of real property in a YA)
2) S.7(4) - Where there is an allowable loss in respect of a disposal, such allowable
loss shall be allowed as a reduction to reduce the total chargeable
gain of a person for a YA in which the disposal was made.
3) Provision enables the deduction of an allowable loss from a transaction against
the total chargeable gain of the person.
(From other transaction/s in the same year of assessment)
(Regardless of whether the loss transaction occurred before or after the
profitable transaction/s during the YA)
4) S.7(4)(b) - Any unabsorbed loss may be c/f to subsequent YAs until fully
absorbed.
5) S.7(5) of RPGT Act - Any allowable loss is absorbed after exemption under
S.4(I.e. The greater of 10% or RM10k)
[Only for an individual]
(vii) Conditional Contract
1) Disposal and acquisition date of chargeable asset = Depends on the date the
condition or the last of the conditions is/are fulfilled.
2) Conditional contract = Contract that requires the approval of the government
or a state government, or an authority or committee
appointed by the government or a state government.
3) Date of disposal = The date that such approval is given.
(If >1 approvals are required, Date of disposal = Deemed to be the date of
the later or last of such approvals is obtained)
4) Example:
A sale and purchase agreement for the disposal of a real property was signed
on 29/12/2011. It was conditional upon the approval from the Security
Commission(SC) as well as the state government. The approval from the SC
came on 2/3/2012 while that from the state government was obtained on
30/8/2012.
- The date of disposal of the real property = Deemed to be 30/8/2012.
(viii) Inter-company transfer of shares under Para.17
1) Para 17 of Sch.2 - 3 types of transfer of assets between Co. = Deemed at
no-gain-no-loss.
(Such transfers must have prior approval of the director general to avail
themselves of the treatment)
(ix) Transfer of fixed assets into stocks
1) Para 17A of Sch.2 - Any reclassification of real property from fixed asset
to current asset (trading stock) = Deemed to be a
disposal of chargeable asset for RPGT purposes
2) Disposal px = Deemed to be at the market value of the asset at the date of
reclassification.
3) Example 3:
A Sdn Bhd, a plantation Co, has a land bank of 500 acres acquired on
10/1/2009 at RM5k per acre. The 500 acres were reflected as a fixed
asset of the Co. On 19/10/2012, it decided to venture into property
development and transferred 100 acres from its fixed asset to current
asset. The market value as at the date of transfer into stock was RM20k
per acre.
- On 19/10/2012, the 100 acres = Deemed to have been disposed of at
RM2m (RM20k x 100 acres)
- The actual acquisition px was RM500k (RM5k x 100 acres)
- Chargeable gain = RM1.5m (RM2m - RM500k)
(Subject to RPGT in 2012)
- A Sdn Bhd is able to take into the stock 100 acres of land at RM20k
(i.e. RM2m)
- The land cost for the development biz is now stepped up to RM2m, but
it has to bear a RPGT of RM75k (RM1.5m x 5%)
(x) No-gain-no-loss transaction
1) A postponement of RPGT liability. (Not an exemption)
2) Acquirer is deemed to acquire at the original acquisition px of the disposer.
3) Acquisition date = Changed to the later date.
4) Example:
Mr A transfers his land (which he acquired on 1/2/2004 for RM100k) to
A Sdn Bhd on 1/3/2010 in return for 200k shares in A Sdn Bhd. This is a
no-gain-no-loss transaction under Para 34.
(A Sdn Bhd = Deemed to have acquired the land for RM100k on 1/3/2010.)
When A Sdn Bhd subsequently disposes of the land on 3/12/2011 for
RM500k, the holding period is < 2yrs (1/3/2010 - 3/12/2011), while the
chargeable gain of A Sdn Bhd is RM400k (RM500k - RM100k)
(xi) Real property Company shares
1) Para 34A - An anti-avoidance measure.
2) Para 34 and 34A are mutually exclusive.
(xii) Definition of Real Property Company (RPC)
1) RPC = A controlled Co, as defined + Owns real property or RPC shares
whose combined defined value (Market value or in certain cases
the deemed acquisition px) is > 74% of total tangible assets.(TTA)
(xiii) When does one determine whether a controlled company is an RPC?
1) On 21/10/1998 (When Para 34A relating to RPC was first introduced)
2) When it 1st acquires real property or RPC shares after that date.
(If not an RPC on 21/10/1988)
(xiv) When does one re-examine whether a controlled companies continues to
be an RPC?
1) Once controlled Co is determined to be an RPC = Remains an RPC.
2) Re-examine RPC status, when:
- Ceases to be a controlled Co, or
- Disposes a real property or RPC shares
(Ceases to be an controlled Co = ceases to be an RPC)
(Disposes a real property or RPC shares until < 75% = Ceases to be an
RPC on the date of disposal of the real property or RPC shares)
(Disposes a real property or RPC shares but still left > 74% = Remain
as RPC)
[Only review the percentage and RPC status when there is disposes]
(xv) Once RPC shares, always RPC shares.
1) Acquire RPC after it ceases to be an RPC = Shareholder who acquired
after that date will
considered as acquiring
non-PRC shares
2) Shareholders who held RPC shares before it ceased to be RPC
= Continue to hold RPC shares
(Even after the Co ceased to be RPC after acquisition of RPC shares)
(Cease after acquisition of the RPC shares = Will not shed its RPC
shares nature)
3) When such shares are disposed of (After RPC status being shed),
it constitutes a disposal of RPC shares = Duly subject to RPGT
provisions.
[Therefore, it is possible, in a single and the same transaction, RPC shares
are disposed of by the disposer, but the shares acquired by the acquirer are
not RPC shares.]
(xvi) Acquisition date.
1) If Co already in existence before 21/10/1988, and on 21/10/1988 it was
determined to be an RPC = Shareholders are deemed to have acquired
RPC shares on 21/10/1988.
2) If the shares are acquired at a time when the Co is not an RPC = The
shares are deemed acquired on the date when the Co subsequently
becomes an RPC.
3) Example:
XYZ Sdn Bhd was not an RPC when it was incorporated on 1/2/2000
with Mr X, Mr Y and Mr Z each holding 100k shares.
- The shares were, therefore = Not RPC shares
On 31/3/2009, the company acquired its first and only real property
(Defined value: RM1.2m) when its total tangible assets (Including the
said real property) stood at RM1.5m.
XYZ Sdn Bhd did not dispose of its real property and it remains an RPC.
Mr X disposed of his 100k shares on 1/12/2012 for RM1m to Mr D.
- Mr X,Y and Z deemed to have each acquired 100k RPC shares on
on 31/3/2009 when the company became an RPC.
- The disposal of the RPC shares by Mr X occurred in the 4th yr
(31/3/2009 to 1/12/2012)
- Mr D acquired RPC shares on 1/12/2012 (Para 34A(2)(b)).
(xviii) Acquisition price.
1) Para 34A(3)(a) of Sch.2 - Acquisition px = A/B x C
[A = Number of shares held by the s/h]
[B = Total issued shares of the Co]
[C = Defined value of the real property at
the date of acquisition of the
chargeable asset]
2) Example (Above):
- Deemed acquisition px of Mr X's 100k shares
= 100k/300k x RM1.2m = RM400k
(Even though Mr X had only paid RM100k for the shares)
- Disposal px = RM1m.
- Mr X's chargeable gain = RM600k (RM1m - RM400k)
- Mr D's acquisition px = Price he paid for the shares = RM1m.
(Para 34A(3)(b))
- Bonus shares which are RPC shares = Obtained at no cost.
(Therefore bonus shares are acquired at 0.)
- Any subsequent sale of such shares = Whole of disposal
consideration will be gain.
(xviv) Withholding tax at source.
1) If transaction is partly or wholly in cash = Withholding of 2% of the
total consideration
2) If transaction is wholly non-cash = Withholding does not apply.
3) If consideration is partly in cash = Compare 2% of the total value of
the consideration & cash
consideration, and withhold the
lower amount.
4) Any money retained = Must be remitted to the DGIR within 60 days
after the date of disposal.
(Counting of the 60 days = Start on the day after the date of disposal)
(xviv) Exemptions where the disposal is made after 5 years.
1) RPGT (Exemption)(No.2) Order 2009 [P.U (A) 486]
- Exemption for all persons where disposal is made after 5yrs.
(From the date of acquisition of the chargeable asset)
2) PU(A) 486 of 2009 has been revoked = Replaced by
PU(A) 434 of 2011
3) PU(A) 434 of 2011 - Continue provide the exemption for a disposal
of chargeable asset in the 6th year (After the date
of acquisition of such chargeable asset) or any
year thereafter.
- New rate of 10% for a disposal made within 2yrs
after the date of acquisition.
- Any disposal made in the 3rd, 4th and 5th (After
the date of acquisition) will continue to be
effectively charged at 5%.
(xx) Exemption of the difference between the appropriate rate and 10% or 5%.
1) A chargeable asset is disposed within 2yrs(After acquisition date)
= An exemption of the difference between the appropriate rate and 10%
or 5%.
(So that final effective RPGT rate is 10% or 5%)
2) Exemption = A/B x C
A = RPGT charged at the appropriate rate - RPGT at 10% or 5%
B = RPGT charged at the appropriate rate.
C = Chargeable gain.
3) Example (From above):
- Chargeable gain = Disposal px of 100k RPC shares - Acquisition px
= RM1m - RM400k
= RM600k.
- Net chargeable gain = Chargeable gain - 10% of chargeable gain or
RM10k, whichever is greater
= RM600k - RM60k
= RM540
- Acquisition date = 31/3/2009.
- Disposal date = 1/12/2012 (Disposal in the 4th year, appropriate is 15%)
- Exemption PU order 434 of 2011 - A/B x C
= [[(540k x 15%) - (540k x 5%)]
/540k x 15%] x 540k
= 360k
- Chargeable gain after exemption = Net chargeable gain - Exemption
= 540k - 360k
= RM180k
(RPGT at appropriate rate of 15% = RM27k)
4) Example:
A chargeable asset was acquired by a Co on 1/6/2011 for RM100k and
is disposed of on 1/11/2012 for RM250k.
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