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This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law.

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Edited version of your written advice

Authorisation Number: 1051512654051

Date of advice: 2 May 2019

Ruling

Subject: Foreign superannuation funds and Assessable income

Question 1

Is the Fund excluded from liability to withholding tax on its interest and dividend income derived from Australia under paragraph 128B(3)(jb) of the Income Tax Assessment Act 1936 (ITAA 1936)?

Answer

Yes

Question 2

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

Answer

Yes

This ruling applies for the following periods

Year ended 30 June 2018

Year ended 30 June 2019

Relevant facts and circumstances

Relevant legislative provisions

Income Tax Assessment Act 1936 section 128B

Income Tax Assessment Act 1936 paragraph 128B(3)(jb)

Income Tax Assessment Act 1936 section 128D

Income Tax Assessment Act 1997 section 995-1

Income Tax Assessment Act 1997 section 118-520

Reasons for decision

Legislative references in this Ruling are to provisions of the ITAA 1936, or to provisions of the ITAA 1997 unless otherwise indicated.

Question 1

Summary

The income consisting of interest and dividends derived from Australia is excluded from liability to interest and dividend withholding tax under paragraph 128B(3)(jb).

Detailed reasoning

For the financial years ended 30 June 2008 and onwards, paragraph 128B(3)(jb) excludes interest and dividend income from withholding tax where that income:

The term 'superannuation fund for foreign residents' is defined in section 118-520 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

Does the Fund qualify as a ‘superannuation fund for foreign residents’ as defined in subsection 118-520(1)?

Is the Fund a ‘fund’ and is it an indefinite continuing fund?

The term ‘fund’ is not defined in either the ITAA 1997 or the ITAA 1936. Therefore, it should be given its ordinary meaning subject to the context in which it appears and having regard to any relevant case law authorities.

The Australian Oxford Dictionary, 2004, Oxford University Press, Melbourne defines the term 'fund' as 1 a permanent stock of something ready to be drawn upon... 2 a stock of money, especially one set apart for a purpose.

In Scott v. FC of T (No 2) (1966) 14 ATD 333; (1966) 10 AITR 290 (Scott), Windeyer J expressed the view that 'fund' in the context of 'superannuation fund' ordinarily meant ‘money (or investments) set aside and invested, the surplus income therefrom being capitalised.’ Windeyer J's views in Scott were cited with approval by Hill J in Walstern Pty Ltd v. Commissioner of Taxation (2003) 138 FCR 1; 2003 ATC 5076; (2003) 54 ATR 423 who stated that 'for present purposes, the point is the need for ‘money’ or ‘other property’ to constitute a ‘fund’.

The Fund is a ‘fund’ for the purposes of section 118-520 as money and investments are set aside for a particular purpose, being the Plan.

Further, while the Fund may be discontinued, the Fund is an indefinitely continuing fund as it does not have a specified end date.

Is the Fund a provident, benefit, superannuation or retirement fund?

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 stated at ATD 351; AITR 312; ALJR 278 that:

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

The court found that the expression ‘provident, benefit, superannuation or retirement 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. The benefit must be characterised by some future purpose. 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.

Perusal of the Plan detailing the establishment of the Fund, the benefits provided and the governing rules indicates the Fund is a ‘provident, benefit, superannuation or retirement fund.’

Members and beneficiaries may be entitled to benefits at Normal Retirement Date and Early Retirement Date. The other benefits (death benefits, disability benefits, payments on termination of employment) are benefits of a kind which do not prevent a fund, the principal purpose of which is the provision of retirement benefits, from being a provident, benefit, superannuation or retirement fund.

Accordingly, we consider that the Fund is a ‘provident, benefit, superannuation or retirement fund.’

Was the Fund established in a foreign country?

The Fund was established in a foreign country.

Was the Fund established and is maintained only to provide benefits for individuals who are not Australian residents?

The employees that participate in the Fund shall not include a person who is not a resident of the Foreign Country. Accordingly, this requirement is satisfied.

The Fund’s central management and control is carried on outside Australia by entities none of whom is an Australian resident?

Paragraphs 20 and 21 of Taxation Ruling TR 2008/9 Income tax: meaning of ‘Australian superannuation fund’ in subsection 295-95(2) of the Income Tax Assessment Act 1997 states in respect of the central management and control (CM&C) of a superannuation fund:

Furthermore, paragraphs 10 and 11 of Taxation Ruling TR 2018/5 Income tax: central management and control test of residency states:

The strategic and high level decision making processes and activities of the Fund are undertaken by the Committee or the Investment Committee. In particular, the Investment Committee has powers of establishing the funding policy of the Plan and the overall investment policy. The Employer shall appoint the Committee and Investment Committee.

Based on this, it is reasonable to conclude that the central management and control of the Fund occurs outside Australia by entities that are not Australian residents.

No amount paid to the Fund or set aside for the Fund has been or can be deducted under the ITAA 1997 and no tax offset has been allowed or is allowable for such an amount?

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.

Conclusion

The elements in section 118-520 are satisfied, and so the Fund is a ‘superannuation fund for foreign residents.’

Is the Fund excluded from liability to interest and dividend withholding tax under paragraph 128B(3)(jb)?

Based on the information provided, the other elements in paragraph 128B(3)(jb) are satisfied. Interest and dividends paid by Australian companies are ‘derived’ by the Fund that is a non-resident. The Fund is exempt from income tax in the Foreign Country. Accordingly, income consisting of interest and dividends derived from Australia is excluded from liability to interest and dividend withholding tax under paragraph 128B(3)(jb).

Question 2

Detailed reasoning

Section 128D provides:

Dividend and interest income derived by the Fund would be subject to withholding tax under subsections 128B(1) and 128B(2) respectively, but for the operation of the withholding tax exemption under paragraph 128B(3)(jb). As paragraph 128B(3)(jb) is specifically referred to in section 128D any interest or dividend income derived by the Fund from Australia will be considered not assessable not exempt income under section 128D.


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