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Authorisation Number: 1051787498485

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Ruling

Subject: Exemption from withholding tax for superannuation funds for foreign residents

Question

Is the Fund excluded from liability to withholding tax on interest, dividend 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:

13 May 2019 to 30 June 2022

The scheme commences on:

13 May 2019

Relevant facts and circumstances

The Fund

48.          The Fund is a trust established by the company under the legislation and regulations (the Foreign Law) in a foreign country (Country A).

49.          The Fund is a certified trust forming part of pension plan in accordance with the laws of Country A and is therefore exempt from income tax in respect of income derived from investments or deposits held for the purposes of a registered pension plan.

50.          The Trustee to the Fund has a principal place of business in Country A.

51.          The Fund is centrally managed and controlled in Country A by members of the committee that are not Australian residents comprising of the employer company representatives.

52.          The Fund holds assets and pays benefits under the registered pension plan (Plan).

53.          The Fund and the Plan operate for the benefit of the retired members and members who terminate their employment with any employer in the company.

54.          The Fund provides benefits to its members in the event of retirement, disability or to a member's survivors in the event of death.

55.          The Fund does not provide benefits as a result of events other than old age retirement, disability, death and in limited circumstances at termination of employment.

Reasons for decision

Summary

The Fund is excluded from liability to withholding tax on interest, dividend and non-share dividend income derived from its Australian investments in accordance with paragraph 128B(3)(jb) of ITAA 1936.

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(4) of the ITAA 1936), interest income (subsection 128B(5) 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)(jb) of the ITAA 1936 states that the liability to withholding tax under section 128B will not apply to:

income that:

                                        (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;

Note:

See subsection (3CA) for extra requirements relating to this paragraph.

In relation to the Fund, the requirements of paragraph 128B(3)(jb) of the ITAA 1936 are considered below.

The Fund is a non-resident

The Commissioner has determined from the facts and circumstances that the Fund is not a resident of Australia.

Therefore, the Fund satisfies this requirement.

Superannuation fund for foreign residents

For the Fund to be considered a superannuation fund for foreign residents for the purposes of paragraph 128B(3)(jb) of the ITAA 1936, it must satisfy the requirements set out in section 118-520 of the ITAA 1997. Section 118-520 of the ITAA 1997 states the following:

(1)          A fund is a superannuation fund for foreign residents at a time if:

(a)          at that time, it is:

(iii) an indefinitely continuing fund; and

(iv) a provident, benefit, superannuation or retirement fund; and

(c) it was established in a foreign country; and

(e) it was established, and is maintained at that time, only to provide benefits for individuals who are not Australian residents; and

(f) 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 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.

1.    An indefinitely continuing fund

The Fund was established pursuant to the Trust Agreement. The Trustee of the Fund has confirmed that it is intended to be an indefinitely continuing fund and the constituent documents do not contain an end date.

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) refers to these authorities to provide 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 establishes 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 essential purpose of the Fund is to facilitate the registered pension plan in providing benefits to its members in the event of retirement, death or disability. The payment of retirement benefits is allowed upon members reaching the specified retirement ages and years of service.

Therefore, it can be concluded that the sole purpose of the Fund is to provide retirement benefits or benefits in other allowable contemplated contingencies and as such, the Fund will satisfy this requirement.

3.    Established in a foreign country

4.    The Fund was established in Country A, which is foreign country.

Therefore, the Fund will satisfy this requirement.

5.    Established and maintained only to provide benefits for individuals who are not Australian residents

The Fund was established to provide retirement, disability and death benefits to members of the Fund. The employers and their employees are not Australian residents.

Therefore, the Fund satisfies this requirement.

6.    Central management and control

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 in respect of the central management and control (CM&C) of a superannuation fund:

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.

Furthermore, paragraph 10 and 11 of the Taxation Ruling TR 2018/5 Income tax: Central Management and Control test of residency (TR 2018/5) states:

10.  Central management and control refers to the control and direction of a company's operations. It does not refer to a physical location in which the control and direction of a company is located, and may ultimately be exercised in more than one location.

11.  The key element in the control and direction of a company's operations is the making of high-level decisions that set the company's general policies, and determine the direction of its operations and the type of transactions it will enter.

The Fund is a certified trust forming part of pension plan in accordance with the laws of Country A. The Fund is managed and administered in Country A by members of the committee that are not Australian residents comprising of the employer company representatives in Country A.

Based on the above, it is reasonable to conclude that the CM&C of the Fund occurs in Country A by entities that are not Australian residents.

Therefore, the Fund will satisfy this requirement.

7.    No amount paid to the Fund or set aside for the Fund has been or can be deducted under the ITAA 1936 or ITAA 1997 and no tax offset has been allowed or is allowable for such an amount

The Fund has advised that it has not and cannot deduct amounts under either the ITAA 1997 or the ITAA 1936 for amounts paid to it. In addition, 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.

Conclusion on subparagraph 128B(3)(jb)(i) of the ITAA 1936.

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 for the purposes of subparagraph 128B(3)(jb)(i) of the ITAA 1936.

Subparagraph 128B(3)(jb)(ii) of the ITAA 1936

Paragraph 128B(3)(jb) of the ITAA 1936 will only apply to interest, or to dividends and non-share dividends paid by Australian resident companies.

The Fund's will receive interest, dividend or non-share dividend income from companies that are residents of Australia for tax purposes.

Therefore, the Fund satisfies this requirement.

Subparagraph 128B(3)(jb)(iii) of the ITAA 1936

The Fund is a certified trust forming part of pension plan in accordance with the laws of Country A and is therefore exempt from income tax in respect of income derived from investments or deposits held for the purpose of a registered pension scheme.

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: c. Subdivision 880-C of the ITAA 1997, or

d. 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.

It has been concluded that the value of the Australian investment is less than 10% of the total participation interests in each of the Australian investments.

Based on this conclusion, the Fund holds less than 10% of the total participation interests in each Australian investment in the circumstances detailed in paragraph 128B(3CC)(b) of the ITAA 1936.

Therefore, for those investments acquired after 1 July 2019, the Fund satisfies the 'portfolio interest test' in respect of its 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, for those investments acquired after 1 July 2019, in respect of each of the Australian entities to which the Fund has invested,

(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 investments,

(b) Neither the Fund, nor any related party of the Fund, holds any right to appoint a person to a board, committee or similar, either directly or indirectly, of any of the Australian investments,

(c) Neither the Fund, nor any related party, holds the right to representation on any investor representative or advisory committee (or similar) of any of the Australian investments,

(d) Neither the Fund, nor any related party, has the ability to direct or influence the operation of any of the Australian investments outside of the ordinary rights conferred by the equity interest held,

(e) The Fund has not entered into or received any side letters, arrangements or agreements, and

(f) The Fund does not hold any veto rights on security holder votes.

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

income because of Subdivision 880-C of the ITAA 1997 or Division 880 of the Income Tax (Transitional Provisions) Act 1997.

Therefore, the Fund satisfies this requirement.

Conclusion

Having regard to the requirements of paragraph 128B(3)(jb) of the ITAA 1936, the Fund is excluded from withholding tax only in relation to interest, dividend and non-share dividend income derived from its current investments.