Edited version of private advice

Authorisation Number: 1051826859333

Date of advice: 16 April 2021

Ruling

Subject: Withholding tax - superannuation fund for foreign residents

Question 1

Is the Fund excluded from liability to withholding tax on its dividend, interest and non-share dividend income derived in respect of its current investments under paragraph 128B(3)(jb) of the Income Tax Assessment Act 1936 (ITAA 1936)?

Answer

Yes

This ruling applies for the following period:

Year ended 30 June 20xx

The scheme commenced on:

1 July 20xx

Relevant facts and circumstances

The Fund

The Plan was established for Government X.

The Fund was created under the authority of the Pensions Law.

The Fund's registered office is in Country X.

The Fund's main purpose is to provide retirement benefits to its members and their beneficiaries.

The Fund's eligible members are employees of organisations affiliated with Government X.

The Fund is a trust governed by the rules of the Plan, under the Pensions Law.

The Trusteeis the Fund's Trustee. The Trustee is an independent corporation.

The Trusteewas formed in accordance with the Pensions Law.

The Trusteeis responsible for the Fund's decision making, management and investment of the Fund. The Trusteeis a corporation governed by the Plan.

The Trusteehas the following responsibilities:

•      To act as administrator of the pension plan.

•      To provide pension administration and pension investment services for any other pension plan that retains the services of the corporation and is approved by the board of directors.

•      To carry out other activities or duties as may be authorised by the executive management.

The Fund is directed by the Trustee'sBoard of Directors (the Board).

The Board is made up of Government X, union, non-union and member appointees.

Resolutions require a majority of Government X and union appointees to be adopted.

Members of the Board are not residents of Australia.

The Fund is a defined benefit scheme governed by the Pensions Law.

The Trustee administers the Plan in a joint trustee governance structure comprising of the Board and Body 1.

Body 1 provides oversight of the Fund and is made up of Government X, union, non-union and member appointees.

Body 1 directs the Trusteeregarding the level of risk appropriate for the Fund's asset mix and makes decisions regarding plan benefits, eligibility, contributions and overall Plan design.

The Fund is a pool of assets made up of contributions from members, matching contributions from employers, and the investment earnings from those contributions.

The Fund's members are residents of Country X and there are no eligible employees that are Australian tax residents.

Benefits provided

Defined Benefit Rules

The Fund provides benefits to members as follows:

a)    Normal retirement pension: a defined benefit pension upon a member attaining the normal retirement age having completed x years of pensionable service, which makes them a vested member.

b)    Early Retirement [without reduction]: a defined benefit pension for a member that has attained a fixed age having completed a minimum of x years of participation.

c)    Early Retirement [with reduction]: a defined benefit pension for a member that has attained the age of x with y years of pensionable service. All employees may retire at age x with their benefits actuarily reduced.

d)    Termination of employment: If vested members do not defer their entitlements or roll over their Fund benefit into another retirement vehicle, they receive the commuted value of their pensions, subject to the Country X tax law. Non-vested members who do not choose to defer or roll over their Fund benefit into another retirement vehicle may receive a cash refund of their contributions minus the withholding tax.

e)    Disability retirement.

f)     Death and survivor benefits.

Investment management

The Fund has a number of investment managers chosen by the Trustee. The Trusteehas oversight of all investment managers. The Board's Investment Committee assists the Trusteewith this function.

The Fund holds the Australian investments directly and makes these investments through its local brokers in Country X. The investments are held in omnibus accounts of the Fund's custodian. The investments are held in this custodian's nominee account, with the Fund being the beneficial owner at all times.

The Fund holds Australian equity and debt investments.

Australian investments

The Fund has invested in Australian equity and debt investments. These equity and debt investments all have the following characteristics:

a.    All equity investments are listed on the Australian Securities Exchange (ASX).

b.    With respect to the equity investments, the Fund holds less than 10% of the total participation interests in each Australian company, trust or real estate investment trust (REIT).

c.     The Fund would hold less than 10% of the total participation interests in each Australian company, trust or REIT in the circumstances detailed in paragraph 128B(3CC)(b) of the ITAA 1936.

d.    Neither the Fund, nor any related party of the Fund, has involvement in the day to day management of the business of any of the Australian companies, trusts or REITs.

e.    Neither the Fund, nor any related party of the Fund, has the right to appoint a director to the Board of Directors of the Australian company, or equivalent role in a trust or REIT.

f.      Neither the Fund, nor any related party, holds the right to representation on any investor representative or advisory committee (or similar) of the Australian company, or equivalent role in a trust or REIT.

g.    Neither the Fund, nor any related party, has the ability to direct or influence the operation of the Australian company, trust or REIT outside of the ordinary rights conferred by the equity interest held.

h.    The Fund only holds rights to vote in proportion to its equity interest in each Australian company, trust or REIT.

Other relevant facts

The Fund has not and cannot deduct amounts under either the Income Tax Assessment Act 1997 (ITAA 1997) or the ITAA 1936 for amounts paid to it.

The Fund has not been allowed a tax offset or a tax offset is not allowable for an amount that has been paid to it.

The Fund submitted a certificate from the Foreign Revenue Authority (FRA) which states that the Fund is exempt from taxation in Country X. The Plan is a pension plan for the purposes of Country X tax law.

The Fund has provided a letter to the Commissioner which states that the Fund is an indefinitely continuing fund.

Where the Fund is to be terminated and wound up, the assets of the fund shall be used to meet the accrued benefit entitlements of employees, pensioners, deferred pensioners and any other persons entitled to a benefit under the pension plan before any other distribution may be made. Such a decision to terminate or wind up will require the unanimous approval of Government X and unions party to the Agreement.

Where the assets of the Fund are insufficient to secure the benefit entitlements, the assets of the Fund shall be allocated to employees, pensioners, deferred pensioners and any other persons entitled to a benefit under the pension plan on a pro-rated basis, based on the actuarial present value of the accrued benefits of those persons as of the date of the wind-up, and distributed in the manner determined by the corporation.

Income of the Fund is not non-assessable non-exempt income because of:

(i)    Subdivision 880-C of the ITAA 1997, or

(ii)   Division 880 of the Income Tax (Transitional Provisions) Act 1997.

Relevant legislative provisions

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

Reasons for decision

Question 1

Is the Fund excluded from liability to withholding tax on its dividend, interest and non-share dividend income derived in respect of its current investments under paragraph 128B(3)(jb) of the Income Tax Assessment Act 1936 ( ITAA 1936)?

Summary

The Fund is a superannuation fund for foreign residents and is excluded from withholding tax in relation to interest, dividend and non-share dividend income derived from its investments under paragraph 128B(3)(jb) or the ITAA 1936.

Detailed reasoning

Broadly, paragraph 128B(3)(jb) of the ITAA 1936 provides an exclusion from withholding tax for interest, dividends and non-share dividends derived by a superannuation fund for foreign residents (subject to the satisfaction of certain conditions).

For the exclusion to apply, the interest, dividend and/or non-share dividend income must be:

•         derived by a superannuation fund for foreign residents (as defined in section 118-520 of the ITAA 1997), and

•         exempt from income tax in the country in which the superannuation fund for foreign residents resides.

Further, from 1 July 2019, the extra requirements in subsection 128B(3CA) of the ITAA 1936 must also be met.

The Fund is a non-resident

The Commissioner has determined from the facts and circumstances that the Fund is not a resident of Australia. The Fund was established in Country X by statute, and its management is completely based there.

Therefore, the Fund satisfies this requirement.

Superannuation fund for foreign residents

Section 118-520 of the ITAA 1997 provides:

(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.

(2)          However, a fund is not a superannuation fund for foreign residents if:

(a)          an amount is 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.

1. An indefinitely continuing fund

The Fund has provided a letter to the Commissioner which states that the Fund is an indefinitely continuing fund.

Where the Fund is to be terminated and wound up in accordance with the Agreement, the assets of the fund shall be used to meet the accrued benefit entitlements of employees, pensioners, deferred pensioners and any other persons entitled to a benefit under the pension plan before any other distribution may be made.

Where the assets of the Fund are insufficient to secure the benefit entitlements, the assets of the Fund shall be allocated to employees, pensioners, deferred pensioners and any other persons entitled to a benefit under the pension plan on a pro-rated basis, based on the actuarial present value of the accrued benefits of those persons as of the date of the wind-up, and distributed in the manner determined by the corporation.

Such a decision to terminate or wind up the Fund, which provides for public service employees, may only be taken with the unanimous approval of Government X and unions party to the Agreement.

Therefore, the Fund satisfies this requirement.

2. A provident, benefit, superannuation or retirement fund

The phrase 'provident, benefit, superannuation or retirement fund' under subparagraph 118-520(1)(a)(ii) of the ITAA 1997 is not defined in either the ITAA 1997 or the ITAA 1936.

ATO Interpretative Decision ATO ID 2009/67 Income Tax: Superannuation fund for foreign residents (ATO ID 2009/67) provides guidance on the meaning of the phrase 'provident, benefit, superannuation or retirement fund':

None of the four descriptors 'provident', 'benefit', 'superannuation' or 'retirement fund' in subparagraph (a)(ii) of the definition of 'superannuation fund for foreign residents' in section 118-520 of the ITAA 1997 are defined. The terms have, however, been the subject of judicial consideration.

The courts have held that for a fund to be a 'provident, benefit, superannuation or retirement fund', the fund 's sole purpose must be to provide superannuation benefits, that is, benefits to a member upon the member reaching a prescribed age or upon their retirement, death or other cessation of employment (Scott v. FC of T (No 2) (1966) 14 ATD 333; (1966) 10 AITR 290, per Windeyer J; Mahony v. FC of T (1967) 14 ATD 519, per Kitto J; Walstern Pty Ltd v. Commissioner of Taxation (2003) 138 FCR 1; 2003 ATC 5076; (2003) 54 ATR 423, per Hill J and Cameron Brae Pty Ltd v. Federal Commissioner of Taxation (2007) 161 FCR 468; 2007 ATC 4936; (2007) 67 ATR 178, per Stone and Allsop JJ).

The above establish that for a fund to qualify as a provident, benefit, superannuation or retirement fund, it must have the sole purpose of providing retirement benefits or benefits in other allowable contemplated contingencies (such as death, disability or serious illness).

The objective of the Fund is set out in the Pensions Law. The objective of the Fund is to provide retirement benefits to its members and their beneficiaries. The Fund meets this objective by providing benefits to members as follows:

a)    Normal retirement pension: a defined benefit pension upon a member attaining the normal retirement age having completed x years of pensionable service, which makes them a vested member.

b)    Early Retirement [without reduction]: a defined benefit pension for a member that has attained a fixed age having completed a minimum of x years of participation.

c)    Early Retirement [with reduction]: a defined benefit pension for a member that has attained the age of x with y years of pensionable service. All employees may retire at age x with their benefits actuarily reduced.

d)    Termination of employment: If vested members do not defer their entitlements or roll over their Fund benefit into another retirement vehicle, they receive the commuted value of their pensions, subject to the Country X tax law. Non-vested members who do not choose to defer or roll over their Fund benefit into another retirement vehicle may receive a cash refund of their contributions minus the withholding tax.

e)    Disability retirement.

f)     Death and survivor benefits.

The Fund does not provide benefits to members as a result of events other than retirement, disability or death.

As the Fund has the sole purpose of providing retirement benefits, the Commissioner accepts the Fund is a 'provident, benefit, superannuation or retirement fund'.

Therefore, the Fund satisfies this requirement.

3. Established in a foreign country

The Fund was established in Country X.

Therefore, the Fund satisfies this requirement.

4. Was established and maintained only to provide benefits for individuals who are not Australian residents

The Fund was established and is maintained in Country X for eligible employees of organisations affiliated with Government X. The Fund operates to provide retirement benefits for its members in Country X.

Therefore, the Fund satisfies this requirement.

5. Central management and control (CM&C)

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 (TR 2008/9) states:

20. The CM&C of a superannuation fund involves a focus on the who, when and where of the strategic and high level decision making processes and activities of the fund. In the context of the operations of a superannuation fund, the strategic and high level decision making processes includes:

•         formulating the investment strategy for the fund;

•         reviewing and updating or varying the fund's investment strategy as well as monitoring and reviewing the performance of the fund's investments;

•         if the fund has reserves - the formulation of a strategy for their prudential management; and

•         determining how the assets of the fund are to be used to fund member benefits.

21. The other principal areas of operation of a superannuation fund that form part of the day-to-day or operational side of the fund's activities will not constitute CM&C. These activities do not form part of the CM&C of the fund because they are not of a strategic or high level nature. Rather, these activities are of a more formalistic or administrative nature. Examples of such activities include the acceptance of contributions that are made on a regular basis, the actual investment of the fund's assets, the fulfilment of administrative duties and the preservation, payment and portability of benefits.

The Board and Body 1 exercise the CM&C of the Fund. The Board and Body 1 members are not Australian residents, and do not make any decisions in Australia.

Therefore, the Fund satisfies this requirement.

6. Subsection 118-520(2)

The Fund has not and cannot deduct amounts under either the ITAA 1997 or the ITAA 1936 for amounts paid to it. The Fund has not been allowed a tax offset or a tax offset is not allowable for an amount that has been paid to it.

Therefore, the Fund satisfies these requirements.

7. Conclusion

As all of the above requirements are satisfied, the Fund meets the requirements of being a superannuation fund for foreign residents as defined by section 118-520 of the ITAA 1997.

The Fund is exempt from income tax in the country in which the non-resident resides

The FRA has confirmed that the Fund is exempt from taxation in Country X.

Therefore, the Fund satisfies this requirement.

Subsection 128B(3CA) of the ITAA 1936

The Treasury Laws Amendment (Making Sure Foreign Investors Pay Their Fair Share of Tax in Australia and Other Measures) Act 2019 introduced extra requirements that must be met for paragraph 128B(3)(jb) of the ITAA 1936 to apply. Generally, these extra requirements apply to income derived from 1 July 2019.

Relevantly:

•         The Fund must satisfy the 'portfolio interest test' in relation to the test entity (subsection 128B(3CC) of the ITAA 1936)

•         The Fund must satisfy the 'influence test' (subsection 128B(3CD) of the ITAA 1936) in relation to the test entity, and

•         The income cannot otherwise be non-assessable non-exempt income of the Fund because of:

a.    Subdivision 880-C of the ITAA 1997, or

b.    Division 880 of the Income Tax (Transitional Provisions) Act 1997.

1. The Fund satisfies the 'portfolio interest test'

Subsection 128B(3CC) of the ITAA 1936 states:

A superannuation fund satisfies the portfolio interest test in this subsection in relation to the test entity at a time if, at that time, the total participation interest (within the meaning of the Income Tax Assessment Act 1997) the superannuation fund holds in the test entity:

(a) is less than 10%; and

(b) would be less than 10% if, in working out the direct participation interest (within the meaning of that Act) that any entity holds in a company:

(i) an equity holder were treated as a shareholder; and

(ii) the total amount contributed to the company in respect of non-share equity interests were included in the total paid-up share capital of the company.

The portfolio test only applies to the Fund's Australian equity interests.

The Fund holds less than 10% of the total participation interests in each Australian company, trust or real estate investment trust (REIT). Further, the Fund holds less than 10% of the total participation interests in each Australian company, trust or REIT in the circumstances detailed in paragraph 128B(3CC)(b) of the ITAA 1936.

The Fund therefore satisfies the 'portfolio interest test' in respect of its current investments.

2. The Fund satisfies the 'influence test'

Subsection 128B(3CD) of the ITAA 1936 states:

A superannuation fund has influence of a kind described in this subsection in relation to the test entity at a time if any of the following requirements are satisfied at that time:

(a) the superannuation fund:

(i) is directly or indirectly able to determine; or

(ii) in acting in concert with others, is directly or indirectly able to determine;

the identity of at least one of the persons who, individually or together with others, make (or might reasonably be expected to make) the decisions that comprise the control and direction of the test entity's operations;

(b) at least one of those persons is accustomed or obliged to act, or might reasonably be expected to act, in accordance with the directions, instructions or wishes of the superannuation fund (whether those directions, instructions or wishes are expressed directly or indirectly, or through the superannuation fund acting in concert with others).

As such, there are two distinct sub-tests within the influence test.

Sub-test 1 of the influence test, as contained in paragraph 128B(3CD)(a) of the ITAA 1936, assesses whether the Fund is able to determine the identity of at least one of the persons who, individually or together with others, makes or is reasonably expected to make, decisions comprising the control and direction of the test entity's operations. This includes situations where the Fund is able to act in concert with others to determine the identity of a relevant decision-maker in the test entity.

Sub-test 1 also extends to situations where the Fund, in its own right, holds the ability to approve or veto decisions which go to the control or direction of the test entity.

Sub-test 2 of the influence test, as contained in paragraph 128B(3CD)(b) of the ITAA 1936, assesses whether at least one of the relevant decision-making persons of the test entity is accustomed or obliged to act, or might reasonably be expected to act, in accordance with the directions, instructions or wishes of the Fund.

Relevantly, in respect of the Fund's investments:

a.    Neither the Fund, nor any related party of the Fund, has involvement in the day to day management of the business of any of the Australian companies, trusts or REITs.

b.    Neither the Fund, nor any related party of the Fund, has the right to appoint a director to the Board of Directors of the Australian company or equivalent role in a trust or REIT.

c.     Neither the Fund, nor any related party, holds the right to representation on any investor representative or advisory committee (or similar) of the Australian company, or equivalent role in a trust or REIT.

d.    Neither the Fund, nor any related party, has the ability to direct or influence the operation of the Australian company, trust or REIT outside of the ordinary rights conferred by the equity interest held.

e.    The Fund only holds rights to vote in proportion to its equity interest in each Australian company, trust or REIT.

Based upon the above, the Commissioner accepts that the Fund does not have influence of a kind described in subsection 128B(3CD) of the ITAA 1936.

3. Otherwise non-assessable non-exempt

The income received by the Fund will not be non-assessable non-exempt income because of Subdivision 880-C of the ITAA 1997 or Division 880 of the Income Tax (Transitional Provisions) Act 1997.

Conclusion

The Fund is excluded from withholding tax in relation to interest, dividend and non-share dividend income derived from its current investments as listed in Appendix 1 to the relevant facts and circumstances of this Ruling.

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