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Edited version of your written advice
Authorisation Number: 1013019936154
Date of advice: 19 May 2016
Ruling
Subject: Withholding tax
Questions and answers
1. Does the fund qualify as a superannuation fund for foreign residents as defined in section 118-520 of the Income Tax Assessment Act 1997 (ITAA 1997)?
Yes.
2. Is the trustee of the fund excluded from liability to withholding tax on its interest and/or dividend income derived from Australia under paragraph 128B(3)(jb) of the Income Tax Assessment Act 1936 (ITAA 1936)?
Yes.
3. Is interest and/or dividend income derived by the trustee of the fund non-assessable income of the fund under section 128D of the ITAA 1936?
Yes.
This ruling applies for the following periods
Year ending 30 June 2017
Year ending 30 June 2018
Year ending 30 June 2019
Year ending 30 June 2020
Year ending 30 June 2021
The scheme commenced on
1 July 2016
Relevant facts and circumstances
The applicant has applied for a private ruling for the superannuation fund for foreign residents.
The application includes the following documentation:
• A copy of a statement from the trustee of the fund, confirming that the fund is an indefinitely continuing fund and a provident, benefit, superannuation or retirement fund, was established in a foreign country, was established and is maintained only to provide benefits for individuals who are not Australian residents, the central management and control of the fund is carried on outside Australia by entities none of whom is an Australian resident, an amount paid to the fund or set aside for the fund has not been or cannot be deducted under the ITAA 1997 and a tax offset has not been allowed or is not allowable for such an amount.
• A letter from the taxing authority of the foreign country certifying that the fund is exempt from income tax in that country.
• Copies of Annual Review Reports.
• A copy of the Articles of the fund providing details of the rules of the fund and the benefits available to the members.
Relevant legislative provisions
Income Tax Assessment Act 1936 Paragraph 128B(3)(jb)
Income Tax Assessment Act 1936 Section 128D
Income Tax Assessment Act 1997 Section 118-520
Reasons for decision
Paragraph 128B(3)(jb) of the ITAA 1936 excludes interest and dividend income from withholding tax where that income:
(i) is derived by a non-resident that is a superannuation fund for foreign residents; and
(ii) consists of interest, or consists of dividends or non-share dividends paid by a company that is a resident; and
(iii) is exempt from income tax in the country in which the non-resident resides;
For the years ended 30 June 2008 and onwards, paragraph 128B(3)(jb) of the ITAA 1936 excludes interest and dividend income from withholding tax where that income:
i. is derived by a non-resident that is a superannuation fund for foreign residents; and
ii. consists of interest, consists of dividends or non-share dividends paid by a company that is a resident; and
iii. is exempt from income tax in the country in which the non-resident resides.
The term 'superannuation fund for foreign residents' is defined in section 118-520 of the Income Tax Assessment Act 1997 (ITAA 1997) as follows:
118-520(1) A fund is a superannuation fund for foreign residents at a time if:
(a) at that time, it is:
(i) an indefinitely continuing fund; and
(ii) a provident, benefit, superannuation or retirement fund; and
(b) it was established in a foreign country; and
(c) it was established, and is maintained at that time, only to provide benefits for individuals who are not Australian residents; and
(d) at that time, its central management and control is carried on outside Australia by entities none of whom is an Australian resident.
118-520(2) However, a fund is not a superannuation fund for foreign residents if:
(a) an amount paid to the fund or set aside for the fund has been or can be deducted under this Act; or
(b) a tax offset has been allowed or is allowable for such an amount.
Perusal of the rules of the fund indicates that the fund satisfies the definition of a superannuation fund for foreign residents for the purposes of section 118-520 of the ITAA 1997.
The statement by the trustee of the fund also confirms that the requirements of the definition have been met.
The tax authorities in the foreign country have certified that the fund is a resident of that country and is exempt from income tax.
Accordingly the interest and/or dividend income of the fund is excluded from withholding tax pursuant to paragraph 128B(3)(jb) of the ITAA 1936.
Section 128D of the ITAA 1936 provides that interest and dividend income that is excluded from withholding tax pursuant to paragraph 128B(3)(jb) is not assessable income.
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