Section 6 of the Real Property Gains Tax Act 1967 does not discriminate between resident and non-resident.

It is 5% of the nett gain and not 2% of the purchase price. Maybe the lawyer did not explain the procedure properly.

See my answer to the above similar query as the same rule would apply to you as well.

The fact that the phrase 'under table' is mentioned I think you have answered your question yourself. Is it normal to pay under table money when doing anything legal? Think about it.



You are the registered proprietor of the land and thus, your title is undefeasible, unless it is obtained by fraud or forgery. Mr Ah Long has no right over the property. Tell him that you bought if from an auction and that you have no connections whatsoever with the previous owner. Lodge a police report for your own protection if he starts threatening you.

Good! It seems like they've got all bases covered. Now to sit down and play the game of legal chess.

I've no idea,mate. Best be thankful that it wasn't 5% of the selling price, right?

Yes it is applicable across the board to citizens, non-citizens, PR, etc. Your doubts has been proven wrong! Rejoice!

Can't say for sure. Within a few months, normally.

This post has been edited by dariofoo: Feb 2 2011, 06:40 PM

Gong Xi Fa Cai to all forum members and loyal followers of Lawyers' Corner. Will be taking a short break for CNY and will be back in a few days' time to answer all outstanding questions and unresolved issues!

Anjoilin,

Unfortunately, you're right. Section 8 read together with the Third Schedule of the RPGT Act specifically mentions citizens and PR only as being entitled to the exemption.

The previous position before the amendment effective Jan 1, 2010 was that all non-citizens/non-PR had to pay 5% tax on the gain for disposal after 5 years [if within 5 years, it was 30%].

After Jan 1, 2010, non-citizens/non-PR were exempted from paying any tax whatsoever for disposal after 5 years. They enjoyed the similar benefit given to citizens/PRs. The exemption was implemented across the board.

Unfortunately, Section 8 was not amended to include non-citizens/non-PR, which is quite unfair. Section 6 includes non-citizens/non-PRs as chargeable persons, but Section 8 does not. Whither the provision of equality before the law as stipulated in the Federal Constitution? Hmmmm..

Just to be sure, I'll buzz LHDN on Monday and find out the latest position. Perhaps I'm wrong and Section 8/Third Schedule has been amended effective Jan 1,2010 to include folks like you as well.

By the way, remember that in any event, you are entitled to a minimum exemption of RM10,000.00 or 10% of the gain, whichever is higher. Something, better than nothing,no?

This post has been edited by dariofoo: Feb 4 2011, 02:41 PM

Title is indefeasible but in this case, by virtue of the S&P, the developers have agreed to sell the property, title and all, to the purchasers. So it doesn't matter, at the end of the day. The developer had undertaken, in the S&P, to apply for subdivision of the master title and execute the necessary transfer forms to effect a transfer to the purchasers. They can't go back on that.

In the advice I gave, that situation was different. The new owner bought the property by way of an auction. He acquires a good title over the property from its previous owner.

The Ah Long has no right over the property. His only remedy is a civil suit against the previous owner for money due and owing. He can't challenge the new owner's title.

Hope that clarifies things,bro?

Indeed.

Tsuyoshi, the delay in replying to your query is because I can't seem to get my hands on a copy of the Malay Reservations Enactment of any State, for that matter.

Generally, the requirements around disposal of a Malay Reservation Land (MRL) is very very strict.

The developer must be a 'Malay holding' within the definition of the respective Enactment. The chargee bank must also be within the similar definition.

When it comes to purchasers, it must be strictly only those who fall under the definition of Malay. From what I remember reading ages ago, the Selangor Enactment does not give any right to dispose a MRL to a non-Malay. The Kelantan Enactment, in contrast, has a provision for disposal to a non-Malay, subject to the consent of the Ruler-in-Council. Not too sure as to the actual wording of the provision, though.

As such, the issue of blanket authority/blanket consent in such developments does not arise as it will contradict the strict requirement of the Enactment, rendering it redundant and academic.

I'm not sure if there are many developments on MRL. As far as I know, it is mostly individual lots given to individuals. A lot of MRL are in rural areas. I doubt if there are MRL in hotspots or developing areas. Correct me if I'm wrong though.

In reality, you do find certain developments with a bumi quota, probably around 30%, of a high-rise development, for example. What happens if the quota is unsold and you want to open it to non-bumis? Then that particular purchaser has to apply for consent from the state authority. You can look at the 30% as somewhat of a MRL as well, but this time, the requirement is not stringent. It can be transferred to a non-bumi as long as state authority's consent has been given.

That's it? End of discussion?

Happy CNY to you too,bro.

What do you mean? Are you saying that there is a clause which provides that if you are unable to obtain a loan and thereafter ensure that the first progressive payment is released within 90 days from the date of the S&P, you would have to pay interest to the developer?

You're referring to Power of Attorney (PA) right?

1. I would advise you to consult a lawyer who can prepare a proper PA.

2. The lawyer would then courier/email it to the owner who is currently overseas and ask him to execute it before a staff at the Malaysian embassy/consulate in that country who is a notary public.

3. Once it has been executed it will be couriered back to the lawyer who will then proceed to register it at the High Court before giving it to the holder of the PA to apply for the extension on behalf of the owner who is overseas.

Huh? Am I missing something here?

Anjoilin,

Just called up LHDN and they've confirmed that the exemption is only for citizens and PRs only. Sorry,mate!

With regard to time taken to issue refund, the lady was non-committal. She said roughly 1-2 months. From experience, I can tell you that it can even take up to 6 months. It depends on the staff and the branch who's handling your file

Bro,

The act which your friend plan to do is a fraudulent transfer with the intent to defeat/delay his creditors. That amounts to what we call an 'act of bankruptcy'. Now, later when the creditors obtain a final court order against him for the sum due and owing,they will enforce it. And to enforce it, they issue a bankruptcy notice (BN) against him. Now, the doctrine of 'relating back' will apply in these circumstances.

So let's say that he transfers the property on 01.01.2011. On 02.02.2011, the bank obtains a court order compelling him to pay, let's say, RM40K. He fails to do so and the bank issues a BN on 03.03.2011.

Applying the doctrine, the bankruptcy would be deemed to have commenced on the date of the act of bankruptcy (01.01.2011), and not on 03.03.2011.

So, the purported transfer to his children would be null and void as the general principle is that a bankrupt cannot dispose off his property on his own volition.

The creditors would then have a field day with all the property.

So tell him not to waste him time and effort, as the law will catch up him in no time.

Advise him to go and see Agensi Kaunselling dan Pengurusan Kredit - AKPK

Website: www.akpk.org.my

The good folk there can REALLY help. They can negotiate with the banks, waive off the interest, arrange for another payment scheme, refinance,etc.

I've referred quite a few there and reviews have been good. But remember to do it early as they will not help your friend once the creditors have started legal action against him

This post has been edited by dariofoo: Feb 8 2011, 05:31 PM

Bro, even if he creates a trust in his position as a debtor, the doctrine of relating back will still apply. He can't sell, transfer, or dispose off the property in any way now.

'Bone fide purchaser' principle also doesn't work,bro.

There are no loopholes,bro. What can a lawyer do now anyway? Just to look for a technicality in the BN and procedure (read: loophole) and delay proceedings only. Buy time. At the end of the day, he will still kena sangkut.

Just ask him to swallow his pride/ego and go to AKPK. It'll be the best advice ever. It's FREE, by the way. Forgot to mention.

Haha. I see. Guess you didn't quote properly, hence the blank.

By the way, your advice to that thread on land transfer dispute between late granpa's heirs and granduncle is, with respect, misconceived.

You can't lodge a caveat if you don't have a caveatable interest. Lodge a caveat wrongly and you'll end up on the wrong end of a court summons for damages

By the way, are you aware that being in possession of more than 200gm of cannabis or cannabis resin raises the presumption of trafficking under s37(da) of the Dangerous Drugs Act? Trafficking, as you would be well aware, is punishable with death.

Just informing you,bro

This post has been edited by dariofoo: Feb 8 2011, 06:19 PM

Good. If messy, better not to get yourself stuck in it too

Well, the vendor is still regarded as the lawful and beneficial owner of the property until the completion of the whole transaction. As such, rental should go to the vendor for the time being.