Edited version of your written advice

Authorisation Number: 1051249967565

Date of advice: 11 July 2017

Ruling

Subject: Foreign Super Fund - Exemption from Income tax/Withholding tax

Question 1

Is the trustee of the entity excluded from liability to withholding tax on its interest and/or dividend income derived from Australia under paragraph 128B(3)(jb) of the ITAA 1936?

Answer

No.

Question 2

Is interest and/or dividend income derived from Australia by the entity non-assessable and non- exempt income under section 128D of the ITAA 1936?

Answer

No.

This ruling applies for the following period(s)

Year ended 30 June 2017

Year ended 30 June 2018

Year ended 30 June 2019

Year ended 30 June 2020

Year ended 30 June 2021

The scheme commences on

1 July 2016

Relevant facts and circumstances

The applicant has applied for a private ruling for a superannuation fund for foreign residents.

The application includes the following documentation:

● Letter from the country’s tax authorities stating the fund was exempt from income tax in that country.

● A copy of the Trust deed and the rules of the fund which provide details of the establishment of the fund, the benefits provided by the fund, and the rules governing the fund.

● 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,

● the fund was established in a foreign country,

● the fund 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 copy of the financial statements of the fund.

● An older copy of the plan document was provided. A newer version exists however there is no material change in the documents and the specific sections considered.

● Section X.4 of the plan document for the entity provides that the trust can lend monies to members with the following requirements:

● The loan is limited to the lesser of 50% of the value of the sum of the members account plus rollover account or $50,000.

● The period of the loan is limited to five years unless being used to acquire, construct, reconstruct or substantially rehabilitate a dwelling to be used as a principle residence in which case the loan period is limited to 15 years.

● As of the end of the 2016 financial year, the entity has loans outstanding of $Z amount.

● Section Y.1 of the plan document for the entity states that an employee is eligible to receive a distribution in the event that they severe employment ties with the employer. They are entitled to their full benefit and this amount can be received as a lump sum or periodic payment.

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

Question 1

Section 128D of the Income Tax Assessment Act 1936 (ITAA 1936) provides that interest and dividend income that is excluded from withholding tax pursuant to paragraph 128B(3)(jb) of the ITAA 1936 is not assessable income.

For the financial 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, 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.

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;

(b) a tax offset has been allowed or is allowable for such an amount

Is the entity a 'fund’? and is it an indefinite continuing fund?

In order to consider the application of Section 118-520 of the ITAA we must first determine if the entity is a 'fund’ and is it an indefinite continuing fund? On consideration of the plan details there is no question that the entity is a 'fund’ that is indefinite and continuing.

Is the entity a provident, benefit, superannuation or retirement fund for the purposes of 118-520 of the ITAA 1997?

The phrase 'a provident, benefit, superannuation or retirement fund’ under paragraph 118-520(1)(a)(ii) is not defined in either the ITAA 1997 or the ITAA 1936. However, the phrase has been subject to judicial consideration.

In Scott, the High Court examined the terms 'superannuation fund’ and 'fund’. Justice Windeyer enunciated at ATD 351; AITR 312; ALJR 278 that:

… I have come to the conclusion that there is no essential single attribute of a superannuation fund established for the benefit of employees except that it must be a fund bona fide devoted as its sole purpose to providing for employees who are participants money benefits (or benefits having a monetary value) upon their reaching a prescribed age. In this connexion “fund”, I take it, ordinarily means money (or investments) set aside and invested, the surplus income there from being capitalised.

In a later case, Mahoney v. Commissioner of Taxation (Cth) (1967) 41 ALJR 232; (1967); 14 ATD 519; 10 AITR 463 (Mahoney), the High Court took a similar view as in Scott, Justice Kitto expressed the view at ALJR 232; (1967); ATD 520; AITR 464 that:

…all that need be recognised is that just as 'provident’ and 'superannuation’ both referred to the provision of a particular kind of benefit – in the one case a provision against contemplated contingencies, and in the other case a provision, to arise on an employee’s retirement or death or other cessation of employee, of a subvention for him or his estate or persons towards whom he may have stood in some kind of relation commonly giving rise to a legal or moral responsibility – so 'benefit’ must have meant a benefit, not a general sense, but characterised by some specific future purpose.

The court found that the expression 'provident, benefit or superannuation fund’ takes its meaning from past usage and the meaning of the several expressions must be arrived at in light of their ordinary usage.

As such the term 'benefit’ requires a purpose narrower than conferring benefits in a completely general sense where the benefit must be characterised by some future purpose e.g. a funeral benefit. On the same note, a provident fund must not refer to the provision of funds in a general sense, but must relate to a provision against contemplated contingencies.

Both of the abovementioned cases emphasise that the benefits must be provided for a specific purpose and require that there is a connection between the benefit received and the provision by the fund for retirement or death of a member or against 'contemplated contingencies’, such as a sickness or accident.

There are two provisions that suggest that the Fund has not been established for the sole purpose of meeting one of the specified purposes. The provisions are as follows:

Section X.4 provides that members can “borrow from their accrued benefit balance in accordance with applicable IRS regulations”. These loans are limited to the lesser of 50% of the value of the sum of the members account plus rollover account or $50,000. The period of the loan is limited to five years unless being used to acquire, construct, reconstruct or substantially rehabilitate a dwelling to be used as a principle residence in which case the loan period is limited to 15 years. Furthermore the financial statements for the Fund show current outstanding loans to members for the 2016 financial year to the amount of $Z.

Section Y.1 of the plan document for NYSDCP also provides that a member of the Fund can receive a distribution on the severance of a member’s employment connection with their employer. The member has access to their full benefit and the amount can be received as a lump sum or periodic payment.

It is considered that due to these two clauses within the plan documentation the Fund will not meet the requirements to be considered a provident, benefit, superannuation or retirement fund.

The lending of money is not in line with the sole purpose of a superannuation fund by supplying benefits on reaching a specified condition such as retirement age or due to an unforseen circumstance such as disablement.

Furthermore, the ability for employees to access their full benefit on cessation of employment without any restrictions is a contradiction to this definition.

Accordingly, the entity is not a superannuation fund for foreign resident and the interest and/or dividend income of the fund is not excluded from withholding tax and will not be non-assessable non-exempt income.

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