Do you need a lawyer or agent to lodge a FIRB application?

Lodging it yourself

Residential applications go through the ATO's Online services for foreign investors. For people without an Australian ABN, the ATO asks for a myID at Basic identity strength, which it says needs no identity documents. You then complete a foreign person profile and lodge the application in one session. Pay the fee and the ATO starts its review; the step-by-step guide covers the order.

The Foreign Investment website lists 1800 050 377 for help with residential applications, and Treasury's overview gives +61 2 6216 1111 for calls from overseas. The ATO also lists a translating and interpreting service on its foreign investment contact pages.

Using a representative

The ATO's service lets a foreign investor authorise a representative to use Online services for foreign investors on their behalf. The ATO separates this from an authorised contact, someone you authorise the ATO to discuss all aspects of your foreign investment obligations with. An authorised contact does not get access to the online service unless they are also set up as a representative.

• How you authorise them. If you have an ATO reference number, you log in to Online services for foreign investors and add them through the manage access function. If you hold an ABN, the authorisation is set up in the Relationship Authorisation Manager.
• What they need. The ATO says a representative acting for an ABN holder needs their own myID of at least Basic identity strength, and an authorisation administrator needs at least Standard. A representative has to accept the authorisation before acting.
• What they can do. They can use Online services for foreign investors on your behalf. A representative designated as an authorisation administrator can authorise others.
• Who qualifies. The pages reviewed do not restrict the role to any profession, so a lawyer, tax agent, relative or other person can be authorised if they meet the identity requirement.

Treasury's fees guidance, which covers the Foreign Investment Portal used for other kinds of investment, refers to the "investor/agent" receiving confirmation messages, which suggests agents can act for investors in that process.

Where official guidance points to advice

Treasury's overview says that if an investor is unsure whether a proposed transaction needs notification, they should seek professional legal advice, and that failing to apply where it is required can lead to penalties. The guidance notes reviewed also carry a notice that they summarise the law and are not a substitute for your own legal advice.

Situations where the answer is not obvious from the guidance include:

• a permanent resident who does not live in Australia, where the ATO says the person may be a foreign person in some circumstances, even though permanent visa holders are exempt from needing approval to buy residential land;
• buying through a company or trust, where the foreign ownership interests in the entity decide whether it counts as foreign; and
• whether a contract is worded as a condition that approval must be received first, or as a term that can later end the contract. See FIRB approval in the contract of sale.

The tasks involved

Whoever does the work, the tasks are the ones the official process describes:

1. Confirm whether you are a foreign person and whether the property type can be approved.
2. Check the contract's FIRB condition, or the exemption certificate route for an auction.
3. Set up access, complete the profile and lodge the application with the right attachments.
4. Pay the fee in Australian dollars with the correct reference.
5. Answer any request for information, which pauses the decision period until answered.
6. Read the no objection notification for the price limit, conditions and time limit.
7. Keep track of the register notice (30 days from acquiring the land), the yearly vacancy return and any build deadline.

Questions people put to an adviser

• Who will be named as the applicant, and are you acting for me, the developer or both?
• Does the quote cover only the lodgement, or also the contract review and the post-approval obligations?
• What is the price, and is it fixed? The ATO's application fee is separate and is paid to the ATO.
• Who pays the ATO fee, from which account, and how will payment be matched to the application?
• How will you handle an information request from the ATO, and how quickly?
• Who diarises the register notice, the vacancy fee return and the build deadline?
• Will I receive a copy of everything lodged and of the approval letter?
• How are you qualified and regulated in my state, and do you carry professional indemnity insurance?

A developer that holds an exemption certificate covering your purchase can sell to you without you lodging an application at all. That is different from someone lodging for you. Treasury says buyers relying on a developer's certificate should check that it covers their purchase.

Accuracy still matters

Treasury lists giving false or misleading information in an application as a breach that can attract civil penalties and infringement notices, and says the Treasurer can revoke an approval where false or misleading information was given before it was issued. Whoever lodges, check that the price, names, ownership split and dates match the contract.

Frequently asked questions

firbapproval.com.au is an independent guide. It is not affiliated with, endorsed by or connected to the Foreign Investment Review Board, the Australian Treasury or the Australian Taxation Office. We do not lodge or process applications. Applications are made to the ATO. General information only, not legal, tax, migration or financial advice.