Edited version of your written advice

Authorisation Number: 1051252332090

Date of advice: 17 July 2017

Ruling

Subject: A foreign superannuation fund and exemption from withholding/income 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 bylaws 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.

● Section V.C in the entity’s bylaws provides that “a member, because of termination of membership in the entity, may withdraw their accumulated contributions together with the interest accrued to their account”.

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

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

There is no question that the entity is a 'fund’ however the question needs to be asked is it is a provident, benefit, superannuation or retirement fund for the purpose of section 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 v Federal Commissioner of Taxation (No.2) (1996) 14 ATD 333, 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.

In the case of the entity, a section in the bylaws allows for employees who have severed their employment ties to receive a full refund of their fund benefits and any accrued benefits. There are no other conditions on the refund of a benefit under these circumstances.

In considering what has been discussed above in regard to 'provident, benefit, superannuation or retirement fund’, not all benefits of the Fund are provisions for retirement. The ability for employees of the fund to receive their full benefit on severance of employment prior to meeting a condition of release such as meeting the age of retirement, financial hardship, disablement or illness does not meet the intended purpose of a superannuation fund. Given this it is considered that your fund is not a 'provident, benefit, superannuation or retirement fund’ under subparagraph 118-520(1)(a)(ii) of the ITAA 1997.

Accordingly, the entity is not a superannuation fund for foreign residents 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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