Oct 12 2012, 05:25 PM
QUOTE(dariofoo @ Oct 12 2012, 04:41 PM)
You got that from an ACCA write up, right? 
Let's take a look at the RPGT Act 1976. The definition of dispose:
“dispose” means, subject to subsection (4), sell, convey, transfer,
assign, settle or alienate whether by agreement or by force of law.
Looking at a strict interpretation , it would mean that disposal is by way of an agreement. As such, I would argue that date of disposal is the date of the agreement.
Yes, there is no doubt that in a transaction of a leasehold property where consent is required, it is a conditional contract. However, I am not of the opinion that date of disposal should be extended to date of consent.
I have two reasons for the said view:
1. Every agreement is conditional up to the very end, i.e. success of registration of the Memorandum of Transfer or perfection of the Deed of Assignment. If the MOT cannot be registered or the DOA cannot be perfected, then the entire agreement is terminated and parties are restored to their original position. Assuming that the argument for the date of disposal ought to be the date consent is given, one might as well go on and say that it is further conditional upon successful registration of the MOT or perfection of the DOA. After all, if consent is given, and yet at the end, transfer/assignment cannot be done - would the transaction still fail and the agreement terminated?
2. For purposes of RPGT, 2% is payable to the Director General of the IRD within 30 days from the date of disposal (date of SPA) being advance remittance of RPGT payable - if disposal is less than 5 years and if no exemption has been applied for.
However, LHDN does not define date of disposal as date consent is given. It looks at date of disposal as date of SPA, i.e. 30 days from date of SPA.
Couple this with the fact that for leasehold properties which require consent, there is a very very very little chance for consent to be given within 30 days from the date of the SPA. However, the 2% must still be paid. As such, LHDN is indifferent as to whether consent is ultimately allowed or otherwise. The 2% must still be remitted.
From my personal experience, date of disposal has always been date of SPA. For 100% confirmation, you can call LHDN customer service and enquire therein.
Thanks Dario for the clarification. Appreciate that Let's take a look at the RPGT Act 1976. The definition of dispose:
“dispose” means, subject to subsection (4), sell, convey, transfer,
assign, settle or alienate whether by agreement or by force of law.
Looking at a strict interpretation , it would mean that disposal is by way of an agreement. As such, I would argue that date of disposal is the date of the agreement.
Yes, there is no doubt that in a transaction of a leasehold property where consent is required, it is a conditional contract. However, I am not of the opinion that date of disposal should be extended to date of consent.
I have two reasons for the said view:
1. Every agreement is conditional up to the very end, i.e. success of registration of the Memorandum of Transfer or perfection of the Deed of Assignment. If the MOT cannot be registered or the DOA cannot be perfected, then the entire agreement is terminated and parties are restored to their original position. Assuming that the argument for the date of disposal ought to be the date consent is given, one might as well go on and say that it is further conditional upon successful registration of the MOT or perfection of the DOA. After all, if consent is given, and yet at the end, transfer/assignment cannot be done - would the transaction still fail and the agreement terminated?
2. For purposes of RPGT, 2% is payable to the Director General of the IRD within 30 days from the date of disposal (date of SPA) being advance remittance of RPGT payable - if disposal is less than 5 years and if no exemption has been applied for.
However, LHDN does not define date of disposal as date consent is given. It looks at date of disposal as date of SPA, i.e. 30 days from date of SPA.
Couple this with the fact that for leasehold properties which require consent, there is a very very very little chance for consent to be given within 30 days from the date of the SPA. However, the 2% must still be paid. As such, LHDN is indifferent as to whether consent is ultimately allowed or otherwise. The 2% must still be remitted.
From my personal experience, date of disposal has always been date of SPA. For 100% confirmation, you can call LHDN customer service and enquire therein.
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