November 8, 2008 Saturday

Iras told to relook property tax rules

Court ruling on sinking funds could affect strata-titled property

By K. C. Vijayan, Law Correspondent

A DISPUTE over one man's property tax which went all the way to the Court of Appeal has resulted in the tax authorities being asked to relook the rules - a move which could affect thousands of strata-titled private properties such as condominiums and malls.

The Court has ruled that sinking fund contributions should form part of the calculation of how much tax is due on a property - but only if the fund has been used that year for repairs or maintenance on the estate.

For now, sinking fund contributions have been factored every year into the overall value of a property.

Mr Tan Hee Liang, who owns a shop in City Plaza in Tanjong Katong, had challenged the Inland Revenue Authority of Singapore (Iras) on why that should be so.

His lawyer Tan Hee Joek, from Drew & Napier, asked why sinking funds meant for maintenance and repair were included in the tax assessment, while contributions to the management fund, which can be tapped for the same purposes, were not.

The Court of Appeal, Singapore's highest court, has now dealt with the discrepancy.

It decided that monies in the sinking fund need not be included in the tax calculation if they were not used in the year of assessment.

But if they were tapped for maintenance and repairs which would have a positive impact on the property's overall value, then they should be included in the calculation.

The three-judge court also held that, unlike most other types of tax declarations, the onus on showing that the sinking funds were used for maintenance and repair should lie with the taxman.

The court sent Mr Tan's case back to Iras' Chief Assessor to recalculate the tax owed, following its decision.

It also asked Iras to come up with clear guidelines on the exclusions.

But it remains to be seen if the judgment would have more impact on strata-title holders like building or unit owners in their contributions to the management fund, often several times larger than the sinking fund.

The current practice is to exclude contributions to the management fund when assessing property tax, as the fund is meant for general purposes not necessarily related to improvements.

But the three-judge Court of Appeal termed the taxman's blanket exclusions as 'curious'.

Judge of Appeal Andrew Phang said they were due to a 'mistaken belief' that management funds have nothing to do with maintenance and repair works. Taxpayers have benefited from the taxman's 'erroneous practice to date', he noted.

In Mr Tan's case, his unit had an annual rental value of $48,000.

He was allowed to deduct his management fund payment of $2,400 from that amount, but not his sinking fund contribution of about $600. The final annual value of the unit, with the deduction, was $45,600.

But management funds are also used for maintenance and repair works which enhance the value of the property and, therefore, should be included in the tax assessment of the property's annual value, reasoned Justice Phang.

This exclusion so far, the judge went on to say, could be a form of concession to taxpayers, which the Chief Assessor is entitled to grant.

Iras told The Straits Times it would follow up on the court's recommendation to draw up guidelines after it receives feedback from industry players.

The change, if and when implemented, could affect unit-owners under the 3,000-odd management corporations that run strata-titled properties, including condominiums.

But any changes would not affect previous property tax payments, Iras' lawyer Julia Mohamed told the court.

Professional valuer Chua Beng Ee said the bulk of management funds is typically used to provide services like security and to upkeep facilities and utilities such as swimming pools, air-conditioning and lighting for common areas. Iras was thus right to exclude the management fund under current practice, he said.

'Monies used for maintenance and repair from the management funds are incidental in any case and expected to be small,' said Mr Chua.

'For practical reasons, the Iras should probably just extend the concession they have always had for management funds to the sinking fund, instead of having to laboriously study the accounts of each MCST (management corporation) to find out exactly which portions are meant for maintenance and repair.'

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Sinking and management funds

What is a sinking fund?

Unit owners of strata-titled buildings such as condominiums, complexes and shopping malls have to contribute towards this fund, meant for periodic and major long-term repair and maintenance works.

Such works include painting, renovations and retro-fitting in common areas, electrical re-wiring, re-roofing, replacement of water supply systems and pumps, as well as replacement and upgrading of lifts. Some management committees may draw from this fund for miscellaneous uses, such as purchasing vehicles for common transport to the nearest train station or bus interchange.

What is a management fund?

The management fund is used mainly to pay for services such as utilities, security and lighting in common areas.

Occasionally, it is used for regular maintenance and repair works such as replacing a burst pipe or other incidental building defects.

Contributions to this fund are typically higher than to the sinking fund. The amount paid by unit holders is determined by the share value of the holder in the strata title, which is decided by, among other things, the size of the unit owned.