Edited version of private advice

Authorisation Number: 1051866024934

Date of advice: 19 July 2021

Ruling

Subject: Sovereign immunity

Question 1

Is the ordinary and statutory income derived by Overseas Entity (OE) from the Fund not assessable income and not exempt income under section 880-105 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer

Yes

Question 2

Is any capital gain or loss made by OE with respect to its investment in the Fund disregarded under sections 880-115 and 880-120 of the ITAA 1997?

Answer

Yes.

Question 3

Does subsection 840-805(9) of the ITAA 1997 apply to exclude OE from liability to withholding tax on income from the Fund under section 840-805 of the ITAA 1997?

Answer

Yes.

Question 4

Does paragraph 128B(3)(n) of the Income Tax Assessment Act 1936 (ITAA 1936) apply to exclude OE from liability to withholding tax on income that is non-assessable non-exempt income due to the operation of Division 880 of the ITAA 1997?

Answer

Yes.

This ruling applies for the following period:

1 July 20XX to 30 June 20XX

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

Foreign Country

1.     Foreign Country is an independent, sovereign, federal state.

2.     Foreign State is a part of Foreign Country.

3.     Foreign Country can exercise sovereignty in matters assigned to it in accordance with its Constitution.

4.     Under Foreign Country Constitution, Foreign States can exercise sovereignty over their own territories and territorial waters in all matters which are not within the jurisdiction of the Foreign Country as assigned in the Constitution.

5.     Under Foreign Country Constitution, the Foreign Country has exclusive legislative and executive jurisdiction over foreign affairs, finance, taxes, duties and fees.

Foreign Entity 1 (FE1)

6.     FE1 is one of the departments of the Foreign State.

7.     FE1 is not a separate entity from the Foreign State.

8.     FE1 does not maintain an office or engage in any trade or business in Australia.

9.     Under Foreign Law, the FE1's objective is to propose and outline the public financial policy for Foreign State and to make plans and schedules related to financial affairs which guarantee the achievement of the objectives of the social and economic development plan through coordination with competent authorities.

10.  Under Foreign Law, the FE1 undertake the following:

(a)   preparing financial studies and researches that are required to outline and develop financial policy for the Foreign State

(b)   granting, managing and supervising the government bank accounts

(c)   controlling and supervising the asset management and government's properties in the Foreign Country

(d)   managing and liquidating the funds that devolve upon the Foreign Government by virtue of laws and court judgments

(e)   managing governmental investments and issuing relevant bylaws, regulations and resolutions

(f)     the responsibility for the management of the financial information systems and preparing annual reports on the financial performance of the Foreign Government according to international standards of transparency of information.

11.  FE1's responsibilities also include:

(a)   identifying and investing in suitable private unlisted companies, and

(b)   exiting investments having regard to the prevailing commercial factors at the time.

12.  Under Foreign Law the FE1's Management are named by Foreign Government.

13.  FE1 is exempted from all fees and taxes whether they are governmental, municipal, customs or others.

14.  FE1 must not take a controlling interest in companies that it invests in and does not work with these companies as a business partner.

15.  The FE1 receives the revenues and funds of the Foreign State and disperses these funds to other departments of the Foreign State as well as investing surplus funds for the benefit of the people of Foreign State.

Foreign Entity 2 (FE2)

16.  To facilitate and exercise the governmental functions bestowed upon it by Foreign Law, the FE1 incorporated FE2, which is legally domiciled in the Foreign State.

17.  FE2 was incorporated under Foreign Law

18.  FE2 does not have maintain an office or engage in any trade or business in Australia.

19.  FE1 holds 100% of the shares in FE2. FE2 wholly-owns OE.

20.  The governance and management of FE2 is carried out by its manager(s) as elected by the shareholder (FE1).

21.  The FE2 shareholder have elected one manager Foreign Government to oversee the management of the company.

22.  FE2 has been wholly capitalised and funded by the FE1. The funds used for capitalisation and ongoing financing are from the general pool of Government finances which are managed by the FE1.

23.  FE2 is a holding entity for the FE1.

OE

24.  OE was incorporated as a company under Foreign Law.

25.  OE is wholly owned by FE2, which in turn is ultimately wholly owned by FE1. OE is therefore indirectly wholly owned by FE1.

26.  The governance and management of OE is carried out by its manager(s) as elected by the shareholder.

27.  The sole shareholder of OE, FE2, elected Foreign Government to oversee the management of the company. Foreign Government is also the chairman of both FE1 and FE2.

28.  OE is wholly capitalised and funded by FE2 from funds allocated to FE2 by the FE1.

29.  Surplus income derived by OE is distributed to FE2 and subsequently to the FE1 for use by the Foreign Government.

30.  There is currently no intention by the FE1 or FE2 to transfer or issue any shares in OE to non-government entities.

31.  OE does not maintain an office or engage in any trade or business in Australia.

32.  OE does not produce or trade non-financial goods.

33.  OE does not provide services that are not financial services.

34.  OE does not actively trade in financial assets and liabilities, operate commercially in financial markets or provide services listed in paragraph 880-130(2)(c) of the ITAA 1997.

The Fund

35.  FE1, through OE acquired an interest in the Fund on DDMMYYYY.

36.  The Fund invests in Australian real property.

37.  OE's investment includes a subscription the Fund, which is less than 10% in the Fund.

38.  The Fund has been managed as a managed investment trust ('MIT') and will continue to be managed as a MIT for Australian tax purposes.

39.  OE receives MIT fund payments and capital gains from their investment in the Fund.

40.  OE is not represented on the board of directors of the trustee and/or the responsible entity of the Fund.

41.  OE does not have any special rights issued with respect to its unit holding in the Fund.

42.  No other entity of Foreign Government other than OE has an interest in the Fund.

Assumptions

1.     OE will not issue any new shares in itself to non-Government entities.

2.     FE2 will not transfer its shareholding in OE to non-Government entities.

Relevant legislative provisions

Income Tax Assessment Act 1936 section 128B

Income Tax Assessment Act 1997 section 840-805

Income Tax Assessment Act 1997 section 880-105

Income Tax Assessment Act 1997 section 880-110

Income Tax Assessment Act 1997 section 880-115

Income Tax Assessment Act 1997 section 880-120

Reasons for decision

Question 1

Is the ordinary and statutory income derived by OE from its unit holdings in the Fund not assessable income and not exempt income under section 880-105 of the ITAA 1997?

Summary

The ordinary and statutory income derived by OE from its unit holdings in the Fund is not assessable and not exempt income due to the operation of section 880-105 of the ITAA 1997.

Detailed reasoning

Section 880-105 of the ITAA 1997 provides that amounts of ordinary and statutory income derived by a sovereign entity are not assessable and not exempt income if certain conditions are met. Those conditions are listed in subsection 880-105(1):

(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.

OE is a covered sovereign entity

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).

These conditions are considered below.

OE is a sovereign entity

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.

Section 960-180 of the ITAA 1997 provides that an entity's total participation interest in another entity is the sum of:

(a) the entity's direct participation interest in the other entity at that time; and

(b) the entity's indirect participation interest in the other entity at that time.

Foreign Country is an independent, sovereign, federal state.

Foreign Country has exclusive legislative and executive jurisdiction over various matters including those pertaining to foreign affairs, and finance, taxes, duties and fees.

Foreign State is a part of Foreign Country and exercises sovereignty over its own territory in all matters which are not within the jurisdiction of Foreign Country as assigned in the Constitution.

FE1, as part of the Foreign Government:

•        directs the public financial policy for the Foreign State

•        controls and supervises the asset management and government's properties in the Foreign State

•        manages and liquidates the funds that devolve upon the Foreign State by virtue of laws and court judgments, and

•        manages governmental investments and issue relevant bylaws, regulations and resolutions.

FE2 was incorporated to facilitate and exercise the governmental functions bestowed upon the FE1 by the Foreign Law. FE2 is wholly owned by the FE1.

OE was incorporated by FE2 to make and acquire investments for the benefit of FE1. OE's sole shareholder is FE2, who elects OE's management.

Ultimately, OE is wholly owned by the FE1, a part of the Foreign Government.

Based on the above facts, OE meets the requirements of being a sovereign entity in accordance with section 880-15 of the ITAA 1997 as it is an entity owned by a foreign government agency as defined in paragraph 880-15(c) of the ITAA 1997.

OE is funded solely by public monies

The phrase 'public monies' is not defined and as such takes its ordinary meaning. In the context of Division 880 of the ITAA 1997, this phrase essentially means monies raised by a foreign government (or part of a foreign government) for a public purpose which form part of the foreign government's (or part of the foreign government's) equivalent to Australia's Consolidated Revenue Fund (Roy Morgan Research Pty Ltd v FC of T & Anor [2011] HCA 35). This would ordinarily include general tax revenue, proceeds from the issue of government bonds, the proceeds of privatisations etc.

OE has been wholly capitalised and funded by FE2. FE2 is wholly capitalised and funded by the FE1. The funds used for capitalisation and ongoing financing are from the general pool of the Foreign Government finances which are managed by FE1.

As such, OE is funded solely by public monies.

All returns on OE's investments are public monies

OE is wholly owned by FE2, which in turn is wholly owned by the FE1, a part of the Foreign Government. As such, the Foreign Government is the beneficial owner of all the capital invested, and all income derived from that capital by OE. Surplus income derived by OE is distributed to FE2 and subsequently to the FE1 for use by the Foreign Government. Therefore, the returns will remain public monies.

There is currently no intention by the FE1 or FE2 to transfer or issues any shares to non-government entities.

OE will not issue any new shares in itself to non-Government entities, nor will FE2 transfer its shareholding in OE to non-Government entities.

Therefore, all returns on OE's investments are public monies. Should any new shares be issued, or existing shares transferred to a non-Government entity, OE will no longer meet this requirement.

OE is not a partnership

OE is a company and is not a partnership. As such, it passes this condition.

OE is not a public non-financial entity or public financial entity

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

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.

It is noted that subparagraph 880-125(d)(ii) of the ITAA 1997 excludes public financial entities that only carry on central banking activities from being excluded as a covered sovereign entity.

OE was incorporated by FE2 to make and acquire investments for the benefit of FE1. The plan administered by OE is considered a function of the Foreign Government, that is, to invest the funds of the Foreign Government in a manner benefitting the obligations set out in Foreign Law for FE1. OE does not produce or trade non-financial goods and does not provide services that are not financial services. OE does not actively trade in financial assets and liabilities, operate commercially in financial markets or provide services listed in paragraph 880-130(2)(c) of the ITAA 1997.

As such, OE is not a public non-financial entity, nor a public financial entity and passes the condition in paragraph 880-125(d) of the ITAA 1997.

As OE satisfies each of the requirements in paragraphs 880-125(a) through (d) it is considered a sovereign entity that is covered by section 880-125 of the ITAA 1997 for the purposes of paragraph 880-105(1)(a) of the ITAA 1997.

OE's return is received on a relevant interest in the Test Entity (the Fund)

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 entities.

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:

1. dividends - including non-share dividends and dividends that pass through a managed investment trust (MIT)
2. interest - including interest that passes through a MIT
3. fund payments made by a MIT (other than fund payments that are attributable to non-concessional MIT income), and
4. revenue gains made on the disposal of an interest in the test entity - including revenue gains that pass through a MIT.

The Test Entity, the Fund, is a unit trust which provides investors with the opportunity to invest in Australian real property.

The Fund has been managed as a MIT and will continue to be managed as a MIT for Australian tax purposes.

OE's investment in the Fund is through a subscription of units (which meet the requirements of being a membership interest as defined by the interaction of sections 960-135 and 960-130 of the ITAA 1997) and OE receives MIT fund payments and capital gains from their investment in the Fund.

As such, OE will receive amounts which satisfy the requirements of paragraph 880-105(1)(b) of the ITAA 1997.

OE's income is received from Australian resident companies or managed investment trusts

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; or

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

The Test Entity, the Fund, is a MIT for Australian income tax purposes and it is intended for the Fund to continue to be managed in a manner to qualify as a managed investment trust.

As such, OE's income is received from an entity which satisfies the requirements of paragraph 880-105(1)(c) of the ITAA 1997.

OE 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/ies 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.

FE1 has invested in Australia through OE. As such, OE's interest in the Fund is the only interest of the FE1 (and FE2) in the Fund.

No other entity of the Foreign Government has an interest in the Fund.

OE's interest and, therefore, the collective interest held in the Fund of its sovereign entity group, is less than 10%.

As such, OE's interest in the Fund satisfies the requirements of paragraph 880-105(d) of the ITAA 1997.

OE's sovereign entity group does not have influence of a kind described in subsection (6)

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).

As such, 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.

As no other members of OE's sovereign entity group (including any entity directly or indirectly owned by the Foreign Government) hold interests in the Fund the influence considerations are limited to the influence held by OE.

OE's X% interest in the Fund does not provide it 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 Test Entities' operations'.

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.

The Fund does not have an investment committee and as a consequence, the FE1, FE2 nor OE will exert actual or potential influence over the operations or investments of the Fund.

No person involved in the control and direction of the Fund's operations is accustomed or obliged to act in accordance with the directions, instructions or wishes of OE.

Based upon the above, the sovereign entity group of OE does not have influence of a kind described in subsection 880-105(6) of the ITAA 1997 and, therefore, satisfies the requirements of paragraph 880-105(1)(f) 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 OE from its investments in the Fund are not assessable and not exempt income.

Question 2

Is any capital gain or loss made by OE with respect to its investments in the Fund disregarded under sections 880-115 and 880-120 of the ITAA 1997?

Detailed Reasoning

Section 880-115 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.

Section 880-120 of the ITAA 1997 provides that a sovereign entity disregards a capital loss from a CGT event if, on the assumption that the loss were a capital gain, the capital gain would be disregarded because of section 880-115 of the ITAA 1997.

As established in Question 1, OE:

(a)   is covered by section 880-125 of the ITAA 1997

(b)   holds membership interests in the Test Entity (the Fund), and

(c)   satisfies 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 Fund.

As such, OE will be required to disregard any capital gain or loss made in respect of its ownership interests in the Fund.

Question 3

Does subsection 840-805(9) of the ITAA 1997 apply to exclude OE from liability to withholding tax on income from the Fund under section 840-805 of the ITAA 1997?

Detailed Reasoning

In accordance with subsection 840-805(1) of the ITAA 1997 you are liable to pay income tax at the rate declared by Parliament on amounts identified in subsections 840-805(2), 840-805(3) or 840-805(4) of the ITAA 1997 if those subsections apply to you.

Under subsection 840-805(9) of the ITAA 1997 subsections 840-805(2), 840-805(3) and 840-805(4) of the ITAA 1997 do not apply to you if the fund payment part relates to an amount 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.

As established in Question 1, the income derived by OE from its Australian investment is considered non-assessable non-exempt income because of Division 880 of the ITAA 1997. In accordance with subsection 840-805(9) of the ITAA 1997 subsections 840-805(2), 840-805(3) or 840-805(4) of the ITAA 1997 will not apply to OE.

Therefore, OE will not be liable to withholding tax under section 840-805 of the ITAA 1997.

Question 4

Does paragraph 128B(3)(n) of the ITAA 1936 apply to exclude OE from liability to withholding tax on income that is non-assessable non-exempt income due to the operation of Division 880 of the ITAA 1997?

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 ITAA 1997.'

The income derived by OE as a return on its Australian investment assets is considered non-assessable non-exempt income under Division 880 of the ITAA 1997.

Therefore, OE is excluded from liability to withholding tax on its interest and/or dividend income under paragraph 128B(3)(n) of the ITAA 1936.