Edited version of your written advice

Authorisation Number: 1051257261636

NOTICE

The private ruling on which this edited version is based has been overturned on objection.

This notice must not be taken to imply anything about the correctness of other edited versions.

Edited versions cannot be relied upon as precedent or used for determining how the ATO will apply the law in other cases.

Date of advice: 27 July 2017

Ruling

Subject: Foreign Super Fund - Exemption from income tax/withholding tax

Question 1

Is the Foreign Superannuation Fund (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)?

Answer

No

Question 2

Is interest and/or dividend income derived from Australia by the Fund not assessable and not exempt income under section 128D of the ITAA 1936?

Answer

No

This ruling applies for the following periods:

Year ended 30 June 2012

Year ended 30 June 2013

Year ended 30 June 2014

Year ended 30 June 2015

Year ended 30 June 2016

Year ended 30 June 2017

Year ending 30 June 2018

Year ending 30 June 2019

Year ending 30 June 2020

The scheme commences on:

1 July 2011

Relevant facts and circumstances

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

The superannuation fund concerned is the Foreign Superannuation Fund X (the Fund).

The application includes the following documentation:

● Letter from the Foreign Country A tax authority stating that the Fund is exempt from income tax in Foreign Country A and is also a resident of the country for the purposes of taxation.

● A copy of the current statutes that created and govern the Fund (the Code).

● The Code provides 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 Income Tax Assessment Act 1997 (ITAA 1997) and

● a tax offset has not been allowed or is not allowable for such an amount.

● A copy of the Fund Comprehensive Annual Financial Report for 2015 and 2014.

● A copy of the Fund Comprehensive Annual Financial Report for 2013 and 2012.

The Code provides the rule of Withdrawal of Contributions and Rollover Distributions.

The Code states that a living person who is not an employee of a participating department and who has not retired may, after application, withdraw all of the accumulated contributions credited to the person's individual account, and the retirement system shall close the account.

A Member Benefits Guide (the Guide) was obtained via the fund website:

The Guide states that if employment terminates with all participating employers, members may choose to – but do not have to – apply for a refund of total member deposits plus and interest.

The Guide states that a refund cannot be processed until the final member deposit to the Fund is received and credited to member’s account. The payroll report transmitting the final deposit must be received by the Fund before refund can be paid. Once the application and the payroll report and the final deposit are received, the refund will be processed for payment.

The Fund had a refunded contributions showing in the financial reports.

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 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 Fund a 'fund’? and is it an indefinite continuing fund?

In order to consider the application of Section 118-520 of the ITAA 1997, we must first determine if the Fund is a 'fund’ and is it an indefinite continuing fund?

On consideration of the details of the fund there is no question that the Fund is a 'fund’ that is indefinite and continuing.

Is the Fund 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, that is, 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 this case there is a provision that suggests that the Fund has not been established for the sole purpose of meeting one of the specified purposes. The provision is as follows:

The Code states that a living person who is not an employee of a participating department and who has not retired may, after application, withdraw all of the accumulated contributions credited to the person's individual account, and the retirement system shall close the account.

There are no listed conditions or restrictions in the Code.

Furthermore, the Fund had a refunded contributions showing in the financial reports.

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

The ability for employees to access their full benefit on cessation of employment without any listed conditions or restrictions is outside of the sole purpose of a fund meeting the definition.

Accordingly, the Fund 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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