ATO Interpretative Decision

ATO ID 2001/334 (Withdrawn)

Income Tax

Income Tax Exemption - Foreign Superannuation Fund
FOI status: may be released

This ATO ID is a simple restatement of the law and does not contain an interpretative decision. Further, it contains a view in respect of provisions of the Income Tax Assessment Act 1936 (ITAA 1936) which were either repealed or amended with effect from 14 September 2006. ATO ID 2009/78 sets out the Tax Office view in respect of the amended provisions which are contained in Division 11A of Part III of the ITAA 1936.

This document incorporates revisions made since original publication. View its history and amending notices, if applicable.

CAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

This ATOID provides you with the following level of protection:

If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.

Issue

Is the trustee of a superannuation fund exempt from income tax on its interest and/or dividend income derived from Australia under paragraph 23(jb) of the Income Tax Assessment Act 1936 (ITAA 1936)?

Decision

The trustee of a superannuation fund, which is a 'foreign superannuation fund' in terms of subsection 6(1) of the ITAA 1936 is exempt from income tax on its interest and/or dividend income derived from Australia under paragraph 23(jb) of the ITAA 1936.

Facts

The fund was established in a country outside Australia.

The fund was established, and is maintained and applied, for the sole purpose of providing superannuation benefits for persons other than persons who are, or would ordinarily be or become, residents of Australia or residents of a Territory of the Commonwealth.

The central management and control of the fund is carried on outside Australia by persons none of whom is a resident of Australia or a resident of a Territory of the Commonwealth.

The fund is not one for which an amount has been set aside, or to which an amount has been paid, by a taxpayer that is an amount that has been allowed or is allowable as a deduction under any provision of the ITAA 1936.

Reasons for Decision

The superannuation fund is a 'foreign superannuation fund' as defined in subsection 6(1) of the ITAA 1936. The trustee of the superannuation fund is therefore exempt from income tax as the fund satisfies the conditions of paragraph 23(jb) of the ITAA 1936. This paragraph exempts the trustee from the liability to pay tax on the income of a superannuation fund, that is a 'foreign superannuation fund' for the purposes of subsection 6(1) of the ITAA 1936 and where its income consists of interest and/or dividend paid by a resident company.

The effect of paragraph 23(jb) together with the subsection 6(1) definition of a 'foreign superannuation fund' is that a foreign superannuation fund which has no connection with Australia other than by virtue of some or all of its funds being invested in Australian interest and/or dividend bearing investments is excluded from the ordinary provisions of the ITAA 1936 relating to the taxation of superannuation funds.

Date of decision: 3 August 2001

Legislative References:
Income Tax Assessment Act 1936
subsection 6(1)
paragraph 23(jb)

Related ATO Interpretative Decisions
ATO ID 2001/320

Keywords
Income Tax Exemptions
Superannuation funds

Business Line: Private Groups and High Wealth Individuals

Date of publication: 15 September 2001

ISSN: 1445-2782

history

	Date:	Version:
	3 August 2001	Original statement
You are here	16 July 2010	Archived

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