Edited version of private advice

Authorisation Number: 1052401247683

Date of advice: 29 May 2025

Ruling

Subject: Sovereign Immunity

Question 1

Is the ordinary and statutory income derived by Company A, Company B and Company C from their investment in Fund A, not assessable and not exempt income under section 880-105 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer 1

Yes.

Question 2

Will any capital gain arising to Company A, Company B and Company C in respect of their investment in Fund A, be disregarded pursuant to section 880-115 of the ITAA 1997?

Answer 2

Yes.

Question 3

Does paragraph 128B(3)(n) of the Income Tax Assessment Act 1936 (ITAA 1936) and subsection 840-805(9) of the ITAA 1997 apply to exclude Company A, Company B and Company C from liability to withholding tax on income from Fund A that is non-assessable non-exempt income due to the operation of Division 880 of the ITAA 1997?

Answer 3

Yes.

This ruling applies for the following periods:

Year ending 30 June 20YY

Year ending 30 June 20YY

Year ending 30 June 20YY

Year ending 30 June 20YY

Year ending 30 June 20YY

The scheme commences on:

1 July 20YY

Relevant facts and circumstances

Sovereign Fund

Sovereign Fund was established in accordance with Foreign Law.

Sovereign Fund is a resident in Country A for income tax purposes and is not subject to income tax in Country A.

Sovereign Fund is recognised under Foreign Law as a government authority of Country A, and Sovereign Fund has its own legal personality and an independent budget.

Pursuant to Foreign Law, Sovereign Fund reports to the highest decision making body in Country A concerning investment and the economy.

Pursuant to Foreign Law, Sovereign Fund is based in Country A and may establish offices abroad.

Pursuant to Foreign Law, Sovereign Fund was established with an objective which includes to invest and manage the funds of Sovereign Fund for the future and benefit of Country A, in accordance with the investment policy approved by Country A.

Pursuant to Foreign Law, Sovereign Fund has the power to and has established a number of entities that hold Sovereign Fund's investments.

Sovereign Fund was established using assets assigned to it by Country A.

The funds used by Sovereign Fund in all of its investments represent the State reserve funds of Country A. Additionally, no personal monies of any individual have been contributed to Sovereign Fund.

The income generated by Sovereign Fund on the investment of the State reserve funds is either reinvested by Sovereign Fund or distributed to the Government of Country A. The funds of Sovereign Fund will be withdrawn in limited circumstances as determined by Country A.

No distributions of income or gains from Sovereign Fund have been made or can be made to any person other than the Government of Country A.

Company A

Company A is a wholly owned subsidiary of Sovereign Fund that was incorporated in Country B. As the sole shareholder, Sovereign Fund controls 100% of the voting rights of Company A.

Company A is a special purpose vehicle established by Sovereign Fund and holds an investment in Fund A, as well as several other investments (none of which result in Company A engaging in commercial activities situated in Australia).

Company A is entirely funded by Sovereign Fund. No third-party debt has been obtained by Company A or by Sovereign Fund to fund Company A.

Company A is not subject to income tax in Country A or Country B.

Company A is not a tax resident in Australia and does not maintain an office in Australia or engage in any trade or business in Australia.

Company B

Company B is a wholly owned subsidiary of Sovereign Fund that was incorporated in the Country B. As the sole shareholder, Sovereign Fund controls 100% of the voting rights of Company B.

Company B is a special purpose vehicle established by Sovereign Fund and holds an investment in Fund A, as well as several other investments (none of which result in Company B engaging in commercial activities situated in Australia).

Company B is entirely funded by Sovereign Fund. No third-party debt has been obtained by Company B or by Sovereign Fund to fund Company B.

Company B is not subject to income tax in Country A or Country B.

Company B is not a tax resident in Australia and does not maintain an office in Australia or engage in any trade or business in Australia.

Company C

Company C is a wholly owned subsidiary of Sovereign Fund that was incorporated in the Country B. As the sole shareholder, Sovereign Fund controls 100% of the voting rights of Company C.

Company C is a special purpose vehicle established by Sovereign Fund and holds an investment in Fund A, as well as several other investments (none of which result in Company C engaging in commercial activities situated in Australia).

Company C is entirely funded by Sovereign Fund. No third-party debt has been obtained by Company C or by Sovereign Fund to fund Company C.

Company C is not subject to income tax in Country A or Country B.

Company C is not a tax resident in Australia and does not maintain an office in Australia or engage in any trade or business in Australia.

Fund A

Fund A was established as a trust allowing investors to benefit from exposure to a portfolio of investments across Australia.

Fund A is an open-ended Australian unit trust and an attribution managed investment trust (AMIT) for Australian tax purposes.

Sovereign Fund has invested in Fund A through Company A, Company B and Company C. Company A, Company B and Company C directly hold an aggregate interest of less than 10% in Fund A.

Under the Constitution for Fund A, the Trustee has established an Investor Review Committee (IRC). The IRC is responsible for protecting investor rights in Fund A.

Company A, Company B and Company C do not have a right to appoint a member on the IRC, nor do Al Company A, Company B and Company C have a current member on the IRC.

Company A, Company B and Company C do not have a right to appoint a director to the Fund A Trustee board of directors (Fund A Board), nor do Company A, Company B and Company C have a current member on the Fund A Board.

Company A, Company B and Company C do not hold any other representative memberships in Fund A.

Company A, Company B and Company C do not have any influence on the operations of Fund A and do not participate in the day to day management of the operations of Fund A.

No other sovereign entities of Country A hold an interest in Fund A.

Company A, Company B and Company C expect to receive managed investment trust (MIT) fund payments, capital gains, franked dividends, unfranked dividends and returns of capital from their investment in Company A, Company B and Company C. Company A, Company B and Company C do not expect to receive non-concessional MIT income.

Relevant legislative provisions

Income Tax Assessment Act 1997 subsection 840-805(9)

Income Tax Assessment Act 1997 section 880-105

Income Tax Assessment Act 1997 section 880-115

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

Does Part IVA apply to this private ruling?

Part IVA of the Income Tax Assessment Act 1936 contains anti-avoidance rules that can apply in certain circumstances where you or another taxpayer obtains a tax benefit, imputation benefit or diverted profits tax benefit in connection with an arrangement.

If Part IVA applies, the tax benefit or imputation benefit can be cancelled (for example, by disallowing a deduction that was otherwise allowable) or you or another taxpayer could be liable to the diverted profits tax.

We have not fully considered the application of Part IVA to the arrangement you asked us to rule on, or to an associated or wider arrangement of which that arrangement is part.

If you want us to rule on whether Part IVA applies, we will need to obtain and consider all the facts about the arrangement which are relevant to determining whether Part IVA may apply.

For more information on Part IVA, go to our website ato.gov.au and enter 'part iva general' in the search box on the top right of the page, then select 'Part IVA: the general anti-avoidancerule for income tax'.

Reasons for decision

Question 1

Is the ordinary and statutory income derived by Company A, Company B and Company C from their investment in Fund A, not assessable and not exempt income under section 880-105 of the ITAA 1997?

Summary

Any ordinary income and statutory income derived by Company A, Company B and Company C from Fund A, is not assessable and not exempt income of Company A, Company B and Company C under subsection 880-105(1) of the ITAA 1997.

Detailed reasoning

Section 880-105 of the ITAA 1997 provides that amounts of ordinary or statutory income that a sovereign entity receives as a return on an interest in another entity is not assessable income and is not exempt income if certain conditions are met. Those conditions are listed in subsection 880-105(1) of the ITAA 1997:

(a)           the sovereign entity is covered by section 880-125; and

(b)           the amount is a return on any of the following kinds of interest that the sovereign entity holds in another entity (the test entity):

(i)            a *membership interest;

(ii)           a *debt interest;

(iii)          a *non-share equity interest; and

(c)           the test entity is:

(i)            a company that is an Australian resident at the time (the income time) when the amount becomes ordinary or statutory income of the sovereign entity; or

(ii)           a *managed investment trust in relation to the income year in which the income time occurs; and

(d)           the *sovereign entity group of which the sovereign entity is a member satisfies the portfolio interest test in subsection (4) in relation to the test entity:

(i)            at the income time; and

(ii)           throughout any 12 month period that began no earlier than 24 months before that time and ended no later than that time; and

(e)           the sovereign entity group of which the sovereign entity is a member does not have influence of a kind described in subsection (6) in relation to the test entity at the income time.

These conditions are considered below.

Company A, Company B and Company C are covered sovereign entities

Section 880-125 of the ITAA 1997 states:

A *sovereign entity is covered by this section if it satisfies all of the following requirements:

(a)           the entity is funded solely by public monies;

(b)           all returns on the entity's investments are public monies;

(c)           the entity is not a partnership;

(d)           the entity is not any of the following:

(i)            a *public non-financial entity;

(ii)           a *public financial entity (other than a public financial entity that only carries on central banking activities).

For an entity to be covered by section 880-125 of the ITAA 1997, it must be a sovereign entity. Section 880-15 of the ITAA 1997 defines a sovereign entity to be any of the following:

(a)           a body politic of a foreign country, or a part of a foreign country;

(b)           a *foreign government agency;

(c)           an entity:

(i)            in which an entity covered by paragraph (a) or (b) holds a *total participation interest of 100%; and

(ii)           that is not an Australian resident; and

(iii)          that is not a resident trust estate for the purposes of Division 6 of Part III of the Income Tax Assessment Act 1936.

A 'foreign government agency' is defined in subsection 995-1(1) of the ITAA 1997 as:

(a)           the government of a foreign country or of part of a foreign country; or

(b)           an authority of the government of a foreign country; or

(c)           an authority of the government of part of a foreign country.

Sovereign Fund was established in accordance with Foreign Law. The objective of Sovereign Fund includes to invest and manage the funds of Sovereign Fund for the future and benefit of Country A, in accordance with the investment policy approved by Country A.

Sovereign Fund is officially recognised as a government body of Country A under Foreign Law. Sovereign Fund reports to the highest decision making body in Country A concerning investment and the economy. Further, the investment policies of Sovereign Fund must be approved by Country A. Sovereign Fund therefore meets the requirements of an agency of a foreign government.

Company A, Company B and Company C are all wholly owned subsidiaries of Sovereign Fund that were incorporated in Country B. Company A, Company B and Company C are not subject to income tax in Country A or Country B. Company A, Company B and Company C are special purpose vehicles established by Sovereign Fund and hold Sovereign Fund's investment in Fund A, as well as several other investments.

Based on these facts and circumstances, it is accepted that Company A, Company B and Company C are each an entity in which a foreign government agency holds a total participation interest (as defined by section 960-180 of the ITAA 1997) of 100%.

Company A, Company B and Company C are each not an Australian resident and are not a resident trust estate for the purposes of Division 6 of Part III of the ITAA 1936.

As such, Company A, Company B and Company C will meet the definition of a 'sovereign entity' by virtue of the operation of paragraph 880-15(c) of the ITAA 1997.

Therefore, this requirement is satisfied.

Company A, Company B and Company C are funded solely by public monies

Sovereign Fund was established using assets assigned to it by Country A. The funds used by Sovereign Fund in all of its investments represent the reserve funds of Country A. Additionally, no personal monies of any individual have been contributed to Sovereign Fund.

The income generated by Sovereign Fund on the investment of the State reserve funds is reinvested by Sovereign Fund or distributed to the Government of Country A. The funds of Sovereign Fund will be withdrawn in limited circumstances as determined by the Country A. No distributions of income or gains from Sovereign Fund have been made or can be made to any person other than the Government of Country A.

In addition, Company A, Company B and Company C are wholly owned subsidiaries of Sovereign Fund, and are entirely funded by Sovereign Fund. No third-party debt has been obtained by Company A, Company B or Company C, or by Sovereign Fund to fund Company A, Company B or Company C.

Therefore, this requirement is satisfied.

Company A, Company B and Company C are not partnerships

Sovereign Fund is recognised under Foreign Law as a government authority of Country A, Sovereign Fund has its own legal personality and an independent budget, and is not a partnership.

Company A, Company B and Company C are wholly owned subsidiary companies of Sovereign Fund. Company A, Company B and Company C are each a special purpose vehicle established by Sovereign Fund and hold Sovereign Fund's investment in Fund A, as well as several other investments. Company A, Company B and Company C are not partnerships.

Therefore, this requirement is satisfied.

Company A, Company B and Company C are not a public non-financial entities or public financial entities

Subsection 880-130(1) of the ITAA 1997 defines the term public non-financial entity:

An entity is a public non-financial entity if its principal activity is either or both of the following:

(a)           producing or trading non-financial goods;

(b)           providing services that are not financial services.

Subsection 880-130(2) of the ITAA 1997 defines the term public financial entity:

An entity is a public financial entity if any of the following requirements are satisfied:

(a)           it trades in financial assets and liabilities;

(b)           it operates commercially in the financial markets;

(c)           its principal activities include providing any of the following financial services:

(i)            financial intermediary services, including deposit-taking and insurance services;

(ii)           financial auxiliary services, including brokerage, foreign exchange and investment management services;

(iii)          capital financial institution services, including financial services in relation to assets or liabilities that are not available on open financial markets.

Public non-financial entities include entities such as airline corporations, postal authorities, state water corporations and port authorities. They also include public non-profit institutions engaging in market production (such as hospitals, schools, or colleges) if they are separate institutional units and charge economically significant prices.

Company A, Company B and Company C are wholly owned subsidiaries of Sovereign Fund that were incorporated in Country B. Company A, Company B and Company C are special purpose vehicles established by Sovereign Fund and hold Sovereign Fund's investment in Fund A, as well as several other investments.

Therefore, the principal activities of Company A, Company B and Company C for the purposes of subsection 880-130(1) of the ITAA 1997 is to invest and manage the funds of the Country A. Company A, Company B and Company C do not produce or trade non-financial goods and do not provide non-financial services. Therefore, Company A, Company B and Company C are not in the business of producing or trading non-financial goods and/or providing non-financial services.

Company A, Company B and Company C do not actively trade in financial assets and liabilities, operate commercially in financial markets or provide any of the services listed in paragraph 880-130(2)(c) of the ITAA 1997. Therefore, Company A, Company B and Company C are not public financial entities, nor public non-financial entities and they each pass the condition in paragraph 880-125(d) of the ITAA 1997.

As Company A, Company B and Company C satisfy each of the requirements in paragraphs 880-125(a) through (d) of the ITAA 1997, they are sovereign entities that are covered by section 880-125 of the ITAA 1997 for the purposes of paragraph 880-105(1)(a) of the ITAA 1997.

Company A, Company B and Company C's return is received on a relevant interest in the test entity

For an amount of ordinary income or statutory income of a sovereign entity to satisfy paragraph 880-105(1)(b) of the ITAA 1997, it must be a 'return on' a membership interest, debt interest or non-share equity interest held by the sovereign entity in the test entity.

As detailed in paragraph 4.37 of the Explanatory Memorandum to the Making Sure Foreign Investors Pay Their Fair Share of Tax in Australia and Other Measures) Act 2019 (the EM), a 'return on' a membership interest for the purposes of paragraph 880-105(1)(b) of the ITAA 1997 will include:

•                     dividends - including non-share dividends and dividends that pass through a MIT

•                     interest - including interest that passes through a MIT

•                     fund payments made by a MIT (other than fund payments that are attributable to non-concessional MIT income), and

•                     revenue gains made on the disposal of an interest in the test entity - including revenue gains that pass through a MIT.

Fund A is an open-ended Australian unit trust and an AMIT. As an AMIT, Fund A is a MIT that has made an irrevocable election to be an AMIT.

Company A, Company B and Company C expect to receive amounts from Fund A, including but not limited to, fund payments made by a MIT.

Therefore, Company A, Company B and Company C will receive amounts which satisfy the requirements of paragraph 880-105(1)(b) of the ITAA 1997.

Company A, Company B and Company C's income is received from Australian resident companies or MITs

For an amount of ordinary income or statutory income of a sovereign entity to satisfy paragraph 880-105(1)(c) of the ITAA 1997, it must be received from an entity that is either:

(i)            a company that is an Australian resident at the time (the income time) when the amount becomes ordinary or statutory income of the sovereign entity;

(ii)           a *managed investment trust in relation to the income year in which the income time occurs...

Company A, Company B and Company C directly hold unit interests in Fund A. Fund A is an open-ended Australian unit trust and an AMIT. As an AMIT, Fund A is a MIT that has made an irrevocable election to be an AMIT.

Therefore, Company A, Company B and Company C's income is received from an entity that satisfies the requirements of paragraph 880-105(1)(c) of the ITAA 1997.

Company A, Company B and Company C's sovereign entity group satisfies the portfolio interest test

For an amount of ordinary income or statutory income of a sovereign entity to satisfy paragraph 880-105(1)(d) of the ITAA 1997, the sovereign entity and the sovereign entity group to which it belongs must satisfy the portfolio interest test in relation to the test entity at both the income time and throughout any 12 month period that began no earlier than 24 months before that time and ended no later than that time.

The portfolio interest test is outlined in subsection 880-105(4) of the ITAA 1997, which states:

A *sovereign entity group satisfies the portfolio interest test in this subsection in relation to the test entity at a time if, at that time, the sum of the *total participation interests that each *member of the group 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 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.

Section 880-20 of the ITAA 1997 provides the definition of sovereign entity group. Broadly, sovereign entities of the same foreign government will be members of the same sovereign entity group and sovereign entities of the same part of a foreign government will be members of the same sovereign entity group.

Company A, Company B and Company C's total aggregate interest in Fund A is less than 10%. No other sovereign entities of Country A hold an interest in Fund A.

Company A, Company B and Company C, and their sovereign entity group collectively held less than 10% interest in the test entity at both the income time and throughout any 12 month period that began no earlier than 24 months before that time and ended no later than that time.

Therefore Company A, Company B and Company C's interest in Fund A satisfies the requirements of paragraph 880-105(1)(d) of the ITAA 1997.

Company A, Company B and Company C's sovereign entity group does not have influence of a kind described in subsection 880-105(6) of the ITAA 1997

For an amount of ordinary income or statutory income of a sovereign entity to satisfy paragraph 880-105(1)(e) of the ITAA 1997, at the income time the sovereign entity group to which the sovereign entity belongs must not have influence over the test entity of a kind described in subsection 880-105(6) of the ITAA 1997.

Subsection 880-105(6) of the ITAA 1997 states:

A *sovereign entity group 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)           a *member of the group:

(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 a member of the group (whether those directions, instructions or wishes are expressed directly or indirectly, or through the member acting in concert with others).

There are two distinct sub-tests within the influence test.

Sub-test 1 of the influence test, (as contained in paragraph 880-105(6)(a) of the ITAA 1997), assesses whether the sovereign entity group 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 sovereign entity group 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 sovereign entity group, in its own right, holds the ability to approve or veto decisions which go to the control or direction of the test entity.

Company A, Company B and Company C's sovereign entity group (including any entity directly or indirectly owned by Country A) collectively hold less than 10% interest in Fund A.

Company A, Company B and Company C do not hold rights to appoint a director to the Fund A Board nor the right to representation on any investor representative or advisory committee (or similar) of Fund A. Company A, Company B and Company C do not hold any other representative memberships in Fund A.

Company A, Company B and Company C's interest of less than 10% does not provide them with an entitlement to either directly or indirectly determine the identity of any person who makes decisions that comprise the control and direction of the Fund A's operations.

In addition, Company A, Company B and Company C's interest does not provide them with the right to approve or veto decisions which contribute to the control or direction of Fund A.

Sub-test 2 of the influence test, (as contained in paragraph 880-105(6)(b) of the ITAA 1997), 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 sovereign entity group.

Company A, Company B and Company C have no involvement in the day to day management of the business of Fund A. Company A, Company B and Company C have no right to appoint a director to the Fund A Board nor the right to representation on any investor representative or advisory committee (or similar) of Fund A. Company A, Company B and Company C do not hold any other representative memberships in Fund A.

Therefore, no person involved in the control and direction of Fund A's operations are accustomed or obliged to act, or expected to act, in accordance with the directions, instructions or wishes of Company A, Company B and Company C.

Based on the above, the sovereign entity group of Company A, Company B and Company C does not have influence of a kind described in subsection 880-105(6) of the ITAA 1997. Therefore, Company A, Company B and Company C satisfy the requirements of paragraph 880-105(1)(e) of the ITAA 1997.

Conclusion

As all of the conditions listed in subsection 880-105(1) of the ITAA 1997 have been satisfied, section 880-105 of the ITAA 1997 will apply such that amounts of ordinary and statutory income derived by Company A, Company B and Company C from their investment in Fund A is not assessable and not exempt income.

Question 2

Will any capital gain arising to Company A, Company B and Company C in respect of their investment in Fund A, be disregarded pursuant to section 880-115 of the ITAA 1997?

Summary

Any capital gain arising to Company A, Company B and Company C in respect of their investment in Fund A will be disregarded under subsection 880-115 of the ITAA 1997.

Detailed reasoning

Section 880-115 of the ITAA 1997 provides that a sovereign entity disregards a capital gain from a CGT event that happens in relation to a CGT asset if:

(a)           the sovereign entity is covered by section 880-125; and

(b)           the CGT asset is a membership interest, non-share equity interest or debt interest in another entity; and

(c)           the requirements in paragraphs 880-105(1)(c), (d) and (e) would be satisfied, on the assumptions that:

(i)            the capital gain were an amount of ordinary income or statutory income; and

(ii)           the amount mentioned in subparagraph (i) became ordinary income or statutory income of the sovereign entity immediately before the time the CGT event happened; and

(iii)          references in those paragraphs to the test entity were references to the other entity mentioned in paragraph (b) of this section.

As established in Question 1, Company A, Company B and Company C:

•                     are covered by section 880-125 of the ITAA 1997

•                     hold membership interests in the test entity, and

•                     satisfy the requirements in paragraphs 880-105(1)(c), (d) and (e) of the ITAA 1997 in relation to ordinary or statutory income that it will derive from the test entity.

Therefore, Company A, Company B and Company C will disregard any capital gain made in respect of its ownership interests in the test entity, by virtue of the operation of section 880-115 of the ITAA 1997.

Question 3

Does paragraph 128B(3)(n) of the ITAA 1936 and subsection 840-805(9) of the ITAA 1997 apply to exclude Company A, Company B and Company C from liability to withholding tax on income from Fund A that is non-assessable non-exempt income due to the operation of Division 880 of the ITAA 1997?

Summary

Company A, Company B and Company C are excluded from liability to withholding tax on income from Fund A that is non-assessable non-exempt income under Division 880 of the ITAA 1997 due to paragraph 128B(3)(n) of the ITAA 1936 and subsection 840-805(9) of the ITAA 1997 in relation to the respective types of income.

Detailed reasoning

Section 128B of the ITAA 1936 imposes liability to withholding tax on income derived by a non-resident that consists of dividend income (subsection 128B(1) of the ITAA 1936), interest income (subsection 128B(2) of the ITAA 1936) as well as other income prescribed in that section.

Subsection 128B(3) of the ITAA 1936 notes that section 128B of the ITAA 1936 will not apply to prescribed categories of income. Relevantly, paragraph 128B(3)(n) of the ITAA 1936 states that this includes income that is non-assessable non-exempt income because of Division 880 of the ITAA 1997 or Division 880 of the Income Tax (Transitional Provisions) Act 1997 (IT(PA)A 1997).

As established in Question 1, the ordinary and statutory income derived by Company A, Company B and Company C as a return on the units they own in Fund A is non-assessable non-exempt income under Division 880 of the ITAA 1997.

Therefore, Company A, Company B and Company C are excluded from liability to withholding tax on their interest and/or dividend income in respect of this investment under paragraph 128B(3)(n) of the ITAA 1936.

Exclusion under subsection 840-805(9) of the ITAA 1997

Subsection 840-805(1) of the ITAA 1997 imposes a liability for MIT withholding tax on amounts paid to in accordance with subsections 840-805(2), (3) and (4) of the ITAA 1997.

Subsection 840-805(9) of the ITAA 1997 provides that subsections 840-805(2), (3) and (4) of the ITAA 1997 do not apply to you if the payments made relate to an amount that is non-assessable non-exempt income because of:

•                     Division 880 of the ITAA 1997, or

•                     Division 880 of the IT(TP)A 1997.

The income derived by Company A, Company B and Company C as a return on the units they own in Fund A is non-assessable non-exempt income under Division 880 of the ITAA 1997.

Therefore, Company A, Company B and Company C are excluded from liability to withholding tax on amounts they receive under subsections 840-805(2), (3) and (4) of the ITAA 1997 in accordance with subsection 840-805(9) of the ITAA 1997.

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