Edited version of private advice

Authorisation Number: 1052166281809

Date of advice: 11 September 2023

Ruling

Subject: Foreign super fund - withholding tax

Question

Does subparagraph 4d) of Article 10 of the Convention between Australia and the Swiss Confederation for the Avoidance of Double Taxation with respect to Taxes and Income, with Protocol [2014] ATS 33 (Swiss Convention) apply to the dividend income paid by Australian resident companies to The Fund, with respect to the Australian investments held through Umbrella Fund (UF) and its Sub-Funds, A and B, such that the dividends shall not be taxed in Australia?

Answer

Yes.

This ruling applies for the following period:

XX July 20YY to XX June 20YY

The scheme commenced on:

XX July 20YY

Relevant facts and circumstances

The Fund

1.            The Fund is an entity with its registered office in Switzerland.

2.            The Fund's purpose is to provide occupational pensions for employees of the Employer Group.

3.            The Fund is free to organise its benefits and organisation within the framework of the provisions of the Pension Fund Act and the Swiss Federal Law on Occupational Retirement, Survivors' and Disability Pension Plans (BVG).

4.            The Fund insures against the risks of old age, death and disability.

5.            Pension assets are supplemented by contributions from employers and insured persons, vested benefits and purchases, income from investments, voluntarily contributions and other income.

UF and its Sub-Funds

6.            UF is a contractually based umbrella fund of the type 'other funds for traditional investments' category in accordance with Articles 25, 68 and 92 of the Swiss Collective Investment Schemes Act of 23 June 2006 (CISA).

7.            UF is made up of sub-funds (Sub-Funds), including Sub-Fund A and Sub-Fund B.

8.            Investment in UF is restricted to The Fund and The Fund holds units in UF for its members as beneficiaries.

9.            There is a fund management company (FMC) and a custodian bank (Custodian).

10.         UF is a contractual arrangement between The Fund (as the sole investor), the FMC and the Custodian.

11.         UF and its Sub-Funds are governed by Swiss law, in particular the CISA, the Swiss Collective Investment Schemes Ordinance of 22 November 2006 (CISO) and the Collective Investment Schemes Ordinance of 27 August 2014 issued by the Swiss Financial Market Supervisory Authority (FINMA) (CISO FINMA).

12.         The legal relationships between The Fund, FMC and Custodian are governed by a contractual arrangement (UF Fund Contract) and the applicable provisions of Swiss legislation concerning collective investment schemes.

13.         Due to their nature as a contractual fund, UF and its Sub-Funds do not have separate legal personalities, are fiscally transparent and are not subject to tax in Switzerland. The incomes of UF and the Sub-Funds are considered to be the income of The Fund as the sole investor in UF.

14.         FMC manages the Sub-Funds independently and in its own name for the account of The Fund.

15.         FMC is the legal owner of the assets held by UF and its Sub-Funds.

16.         FMC makes all decisions in respect of UF relating to the issuing of units, the investments and their valuation.

17.         FMC exercises all rights associated with UF and the Sub-Funds.

18.         FMC and its agents act independently and exclusively in the interests of The Fund as the sole investor, subject to the duties of loyalty, due diligence and disclosure.

19.         FMC may delegate investment decisions and specific tasks to third parties, provided this is in the interests of proper management.

20.         The Custodian is responsible for the safekeeping of the Sub-Fund's assets, the issue and redemption of fund units and payment transfers on behalf on the Sub-Funds.

21.         The Custodian and its agents act independently and exclusively in the interests of The Fund, as the sole investor, subject to the duties of loyalty, due diligence and disclosure.

22.         The Custodian may delegate the safekeeping of the Sub-Funds' assets to third-party and central depositories in Switzerland or abroad, provided this is in the interests of proper management.

23.         The Custodian ensures that FMC complies with the law and the UF Fund Contract.

24.         The Fund may terminate the UF Fund Contract at any time and demand that their share in the relevant Sub-Fund be paid out in cash or a redemption in kind.

25.         The net income of the Sub-Funds will be added on an annual basis to the corresponding Sub-Fund's assets for reinvestment, subject to any taxes and duty charged on the reinvestment. FMC may also decide to accumulate the income on an interim basis.

26.         External auditors examine whether the FMC and the Custodian have complied with the statutory and contractual provisions, and with any parts of the code of conduct of the Asset Management Association Switzerland applicable to them.

The Fund's Australian investments via the UF and its Sub-Funds

27.         UF invested in publicly traded shares in entities listed on the Australian Securities Exchange (ASX).

28.         UF's investments are held under Sub-Funds with their own respective assets managers to whom the investment decisions have been delegated.

29.         The Sub-Funds, A and B hold shares in Australian resident companies which pay dividends.

30.         The Sub-Funds are the direct recipients of the dividends paid by Australian resident companies.

31.         The Sub-Funds, A and B, hold no more than 10% of the voting power in the Australian resident companies paying dividends.

Additional information

32.         The Fund does not carry on a business through a permanent establishment situated in Australia and does not perform independent personal services from a fixed base in Australia.

33.         The Fund, being the beneficial owner of the dividends, will not participate in the management, control or decision-making of any of the entities from which it derives dividend income.

34.         The Australian payers with respect to The Fund's Australian investments have no special relationship with The Fund.

35.         The Fund is exempt from tax in Switzerland.

36.         The Certificate of Residence from the Tax Authorities of the Canton of A states The Fund is a resident of Switzerland for tax purposes.

Assumptions

37.         The Australian resident companies that pay dividends from the investments held through UF and its Sub-Funds are not dual residents of both Australia and Switzerland, pursuant to paragraph 1 of Article 4 of the Swiss Convention.

Relevant legislative provisions

Income Tax Assessment Act 1936 section 128B

Convention between Australia and the Swiss Confederation for the Avoidance of Double Taxation with respect to Taxes and Income, with Protocol [2014] ATS 33 Article 10

Reasons for decision

Question 1

Does subparagraph 4d) of Article 10 of the Convention between Australia and the Swiss Confederation for the Avoidance of Double Taxation with respect to Taxes and Income, with Protocol [2014] ATS 33 (Swiss Convention) apply to the dividend income paid by Australian resident companies to The Fund, with respect to the Australian investments held through UF and its Sub-Funds, A and B, such that the dividends shall not be taxed in Australia?

Detailed reasoning

Subsection 128B(1) of the Income Tax Assessment Act 1936 (ITAA 1936) provides that, subject to certain exclusions, section 128B of the ITAA 1936 will apply to income derived by a non-resident that consists of a dividend paid by an Australian resident company (franked dividends are specifically excluded from the operation of section 128B by paragraph 128B(3)(ga) of the ITAA 1936).

Subsection 128B(4) of the ITAA 1936 provides that a person who derives dividend income to which section 128B of the ITAA 1936 applies, is liable to pay withholding tax on that dividend income. The withholding tax rate applicable is generally 30% of the dividend amount (section 7 of the Income Tax (Dividends, Interest and Royalties Withholding Tax) Act 1974).

Unfranked dividends derived by a non-resident from Australian resident companies are therefore subject to withholding tax unless otherwise excluded.

However, in determining liability to Australian tax on Australian source income derived by a non-resident, it is necessary to consider not only the income tax laws but also any applicable Convention or Double Taxation Agreement contained in the International Tax Agreements Act 1953 (Agreements Act).

Section 4 of the Agreements Act incorporates that Act with the ITAA 1936 and the Income Tax Assessment Act 1997 (ITAA 1997) so that those Acts are read as one. The Agreements Act effectively overrides the ITAA 1936 and ITAA 1997 where there are inconsistent provisions (except for some limited provisions).

Withholding tax payable in respect of dividends paid to non-residents is an Australian income tax that is covered by the Swiss Convention. As such, consideration of the Swiss Convention is outlined below.

Swiss Convention - application to The Fund

In order for the Swiss Convention to apply, Article 1 of the Swiss Convention states:

This Convention shall apply to persons who are residents of one or both of the Contracting States.

The Fund must therefore be considered both a 'person' and a 'resident of a Contracting State' for the Swiss Convention to apply.

Person

Subparagraph 1c) of Article 3 of the Swiss Convention defines 'person' to include:

...an individual, a company, a trust and any other body of persons.

Subparagraph 1d) of Article 3 of the Swiss Convention defines a 'company' to mean:

... any body corporate or any entity which is treated as a company or body corporate for tax purposes.

The Fund is an entity whose purpose is to provide occupational pensions for employees of the Canton of A against the economic consequences of old age, disability and death. It is a 'body corporate'. It is accepted that The Fund is a 'person' in accordance with subparagraph 1c) of Article 3 of the Swiss Convention for the purposes of applying the Swiss Convention.

Resident of a Contracting State

Paragraph 1 of Article 4 of the Swiss Convention provides the following:

For the purposes of this Convention, the term "resident of a Contracting State" means any person who, under the laws of that State, is liable to tax as a resident of that State, and also includes the Government of that State and any political subdivision or local authority thereof. This term, however, does not include any person who is liable to tax in that State in respect only of income from sources in that State.

In addition, sub-subparagraph 3a)(i) of the Protocol to the Swiss Convention states that, in relation to paragraph 1 of Article 4 of the Swiss Convention, it is understood that the term 'resident of a Contracting State' includes, in particular, a person that is a pension scheme established in that State.

Accordingly, The Fund must be a 'pension scheme established in Switzerland' to satisfy the definition of a 'resident of a Contracting State' for the purposes of the Swiss Convention.

Subparagraph 1i) of Article 3 of the Swiss Convention provides the following in respect of the term 'pension scheme':

...the term "pension scheme" means any plan, scheme, fund, foundation, trust or other arrangement established in a Contracting State or, in the case of Australia, that is an Australian superannuation fund for the purposes of Australian tax, which is:

(i)    regulated by that State; and

(ii)   operated principally to administer or provide pension or retirement benefits or to earn income for the benefit of one or more such schemes.

Subparagraph 2b) of the Protocol to the Swiss Convention provides the following in respect of Article 3 of the Swiss Convention:

It is understood that the term "pension scheme" in subparagraph i) of paragraph 1 includes the following and any identical or substantially similar schemes which are established pursuant to legislation introduced after the date of signature of this Convention:

a)    in Switzerland, any pension schemes covered by:

(i)the Federal Act on old age and survivors' insurance, of 20 December 1946;

(ii)      the Federal Act on disabled persons' insurance of 19 June 1959;

(iii)     the Federal Act on supplementary pensions in respect of old age, survivors' and disabled persons' insurance of 6 October 2006;

(iv)    the Federal Act on old age, survivors' and disabled persons' insurance payable in respect of employment or self-employment of 25 June 1982, including the non-registered pension schemes which offer occupational pension plans and the forms of individual recognised pension schemes comparable with the occupational pension plans.

Paragraph 1.35 of the Explanatory Memorandum to the International Tax Agreements Amendment Bill of 2014 (Cth) (EM to the ITAAB 2014) states the following in respect of sub-subparagraphs 1i)(i) and 1i)(ii) of Article 3 of the Swiss Convention:

In Switzerland, a pension scheme includes any plan, scheme, fund, foundation or trust that is established and regulated in Switzerland and is operated principally to administer or provide pension or retirement benefits or to earn income for the benefit of one or more such schemes.

The Fund is exempt from tax in Switzerland and as a result, due to it not being liable to pay tax in Switzerland, prima facie, The Fund does not satisfy paragraph 1 of Article 4 of the Swiss Convention to be defined as a 'resident of a contracting state'. However, despite the requirement in paragraph 1 of Article 4 for the person to be liable to tax, sub-paragraph 3(a)(i) of the Protocol of the Swiss Convention makes it clear that a pension scheme established in Switzerland is a resident of a Contracting State.

The Fund was established in Switzerland pursuant to the Swiss Civil Code and the BVG, with the object to provide occupational welfare for the employees of Switzerland within the meaning of the BVG.

In the extract of the law concerning The Fund (Pension Fund Act, PKG) it states that The Fund is an entity whose statutory purpose is to provide occupational pensions for employees of the canton and the staff of affiliated employers under the Federal Act on Occupational Retirement, Survivors' and Disability Pension Plans of 25 June 1982. As such, item (iv) of subparagraph 2b) of the Protocol to the Swiss Convention.

Therefore, pursuant to sub-paragraphs 3a)(i) of the Protocol to the Swiss Convention, The Fund is a 'pension scheme' and therefore a resident of a Contracting State (i.e. Switzerland) under paragraph 1 of Article 4 of the Swiss Convention. This is further acknowledged by the provision of a letter from the Swiss tax authorities confirming The Fund's status as a resident of Switzerland for income tax purposes.

Conclusion on the application of the Swiss Convention

The Fund meets the requirements of Article 1 of the Swiss Convention and is therefore subject to its application.

Swiss Convention - application to taxes

Paragraphs 1 and 2 of Article 2 of the Swiss Convention, in respect to taxes covered, provides the following:

1.    This Convention shall apply to taxes on income imposed on behalf of a Contracting State and, in the case of Switzerland, on behalf of its political subdivisions or local authorities, irrespective of the manner in which they are levied.

2.    There shall be regarded as taxes on income all taxes imposed on total income or on elements of income, including taxes on gains from the alienation of movable or immovable property, taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation.

In addition, subparagraph 3a) of Article 2 of the Swiss Convention provides the following:

The existing taxes to which this Convention shall apply are in particular:

a)    in Australia:

the income tax, the fringe benefits tax and resource rent taxes imposed under the federal law of Australia;

(hereinafter referred to as "Australian tax");

Based upon the above, the Swiss Convention applies to all taxes imposed on income and in particular applies to Australian income tax.

Section 128B of the ITAA 1936 imposes liability to withholding tax on dividend, interest and royalty income derived by non-residents. As such, withholding tax payable in respect to dividends to non-residents is considered to be an Australian income tax and is covered by the Swiss Convention.

Dividend income

Article 10 of the Swiss Convention is the relevant provision in relation to dividend income. The provision states relevantly:

1. Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State.
2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if the beneficial owner of the dividends is a resident of the other Contracting State, the tax so charged shall not exceed:

a)    5 per cent of the gross amount of the dividends if the beneficial owner is a company which, in the case of Australia, holds directly at least 10 per cent of the voting power in the company paying the dividends, or in the case of Switzerland, holds directly at least 10 per cent of the capital in the company paying the dividends;

b)    15 per cent of the gross amount of the dividends in all other cases.

3.    ....

4. Notwithstanding the provisions of subparagraph 2b), dividends shall not be taxed in the Contracting State of which the company paying the dividends is a resident if the beneficial owner of the dividends holds, in the case of Australia, directly no more than 10 per cent of the voting power in the company paying the dividends, or in the case of Switzerland, directly no more than 10 per cent of the capital of the company paying the dividends, and the beneficial owner is:

a)    A Contracting State, or political subdivision or a local authority thereof (including a government investment fund);

b)    a central bank of a Contracting State;

c)    in the case of Australia, a resident of Australia deriving such dividends from the carrying on of complying superannuation activities; or

c)    in the case of Switzerland, a pension scheme whose investment income is exempt from Swiss tax.

5.    Paragraphs 2, 3 and 4 shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.

6. ....
7. The provisions of paragraphs 1, 2, 3 and 4 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
8. ....
9. Notwithstanding paragraph 8, dividends paid by a company that is deemed to be a resident only of one Contracting State pursuant to paragraph 3 of Article 4 may be taxed in the other Contracting State, but only to the extent that the dividends are paid out of profits arising in that State. Where such dividends are beneficially owned by a resident of the first-mentioned State, paragraph 2 of this Article shall apply as if the company paying the dividends were a resident only of the other State.

For subparagraph 4d) of Article 10 of the Swiss Convention to apply to The Fund, to the effect that the dividend income shall not be taxed in Australia, it must satisfy each of the following:

•         There are dividends that are paid by companies that are residents of Australia.

•         The Fund is the beneficial owner of the dividends.

•         The Fund holds directly no more than 10 per cent of the voting power in the companies paying the dividends.

•         The Fund is a pension scheme, and its investment income is exempt from Swiss tax.

These requirements are considered below.

There are dividends that are paid by companies that are residents of Australia

UF's Sub-Funds, A and B, hold shares in Australian resident companies which pay dividends in relation to those investments.

Therefore, there are dividends that are paid by companies that are residents of Australia from the investments held by The Fund through UF and its Sub-Funds, A and B.

The beneficial owner of the dividends

The term 'beneficial owner' is not defined in the Swiss Convention.

Paragraph 2 of Article 3 of the Swiss Convention provides the following:

As regards the application of the Convention at any time by a Contracting State, any term not defined therein shall, unless the context otherwise requires, have the meaning that it has at that time under the law of that State for the purposes of the taxes to which the Convention applies, any meaning under the applicable tax laws of that State prevailing over a meaning given to the term under other laws of that State.

As such, the definition of the term 'beneficial owner' in relation to dividends derived from an Australian source shall be guided by the context of its use in the Swiss Convention or, without such context, by the laws of Australia for the purposes of taxation.

Additionally, paragraphs 1.41, 1.42 and 1.43 of the EM to the ITAAB 2014 provide the following, in respect of paragraph 2 of Article 3 of the Swiss Convention:

1.41. Unless the context requires otherwise, a term not specifically defined in the Swiss Convention will have the same meaning that it has under the law of the country applying the Convention at the time of its application. In that case, the meaning of the term under the taxation law of that country will have precedence over the meaning it may have under other domestic laws.

1.42. The same term may have a differing meaning and a varied scope within different Acts relating to specific taxation measures. For example, GST definitions are sometimes broader than income tax definitions. The definition more specific to the type of tax should be applied in such cases. For example, where the matter subject to interpretation is an income tax matter, but definitions exist in either the ITAA 1936 or the ITAA 1997 and the A New Tax System (Goods and Services Tax) Act 1999, the income tax definition would be the relevant definition to be applied.

1.43. If a term is not defined in the Convention, but has an internationally understood meaning in tax treaties and a meaning under the domestic law, the context would normally require that the international meaning be applied.

ATO Interpretive Decision ATO ID 2011/13 Income Tax Interest withholding tax: interest arising in Australia paid to a New Zealand Limited Partnership - 'beneficially owned' (ATO ID 2011/13)provides guidance in relation to the use of relevant context for interpreting Australian tax treaties and is therefore instructive in considering the application of paragraph 2 of Article 3 of the Swiss Convention.

ATO ID 2011/13 states the following:

Relevant context for the purposes of interpreting an Australian tax treaty includes the Commentaries on the OECD Model Tax Convention on Income and on Capital (the OECD Commentary). Paragraph 104 of Taxation Ruling TR 2001 / 13 states that the OECD Commentary provides important guidance on interpretation and application of the OECD Model Tax Convention and will often need to be considered as a matter of practice, in interpreting tax treaties, at least where the wording is ambiguous.

Paragraph 12.1 of the 2017 OECD Commentary on Article 10 of the Model Tax Convention (OECD Commentaries) states:

... The term "beneficial owner" is therefore not used in a narrow technical sense (such as the meaning it has under the trust law of many common law countries), rather, it should be understood in its context, in particular in relation to the words "paid ... to a resident", and in light of the object and purposes of the Convention, including avoiding double taxation and the prevention of fiscal evasion and avoidance.

Therefore, the term 'beneficial owner' should be used in a purposive sense in light of the operation of the Swiss Convention.

Paragraph 12.4 of the OECD Commentaries informs that the 'beneficial owner' can be found through identifying the entity which has the unconstrained right to use and enjoy the dividend income:

... Where the recipient of a dividend does have the right to use and enjoy the dividend unconstrained by a contractual or legal obligation to pass on the payment received to another person, the recipient is the "beneficial owner" of that dividend. It should also be noted that Article 10 refers to the beneficial owner of a dividend as opposed to the owner of the shares, which may be different in some cases.

Further, the OECD Commentaries at paragraphs 12.2 to 12.3 provides examples of situations where agents, nominees, and conduit companies acting as a fiduciary or administrator on account of the interested parties would not be the 'beneficial owner' of the income despite being the direct recipient of the income. In particular, paragraph [12.4] states:

In these various examples (agent, nominee, conduit company acting as a fiduciary or administrator), the direct recipient of the dividend is not the "beneficial owner" because that recipient's right to use and enjoy the dividend is constrained by a contractual obligation to pass on the payment received to another person.

In terms of Australian tax, ATO Interpretive Decision ATO ID 2008/61 Income Tax: Withholding Tax Exemption: interest and dividends paid by an Australian resident and received by a Dutch Stichting as unitholder in an Irish Common Contractual Fund (ATO ID 2008/61) is relevant. ATO ID 2008/61 provides that, in respect of the particular arrangement in that decision, the relationship between the manager, custodian and the unitholder constitute a trust relationship.

ATO ID 2008/61 refers to French J in Harmer & Ors v. FC of T 89 ATC 5180; (1989) 20 ATR 1461 who stated that a trust 'is notably a definition of a relationship by reference to obligations'.

Further, ATO ID 2008/61 provides the following:

His Honour went on to state that the four essential elements of a trust are:

1.    the trustee who holds a legal or equitable interest in the trust property

2.    the trust property which must be property capable of being held on trust and which includes a chose in action

3.    one or more beneficiaries other than the trustee, and

4.    a personal obligation on the trustee to deal with the trust property for the benefit of the beneficiaries, which obligation is also annexed to the property.

ATO ID 2008/61 states the following:

All four elements of a trust are present in the relationship between the manager, custodian and the unitholder of the CCF. The manager of the CCF, and in some cases the custodian, holds legal title to the assets of the CCF. The assets are not held by the manager and the custodian for their own benefit, but rather the deed obliges the manager and custodian to deal with the assets of the CCF on behalf of and in the best interests of the unitholder in the CCF. Accordingly, both the manager and the custodian are acting in a trustee capacity with respect to the assets of the CCF, being the trust property which initially arose from the unitholder's contributions to the CCF. A unitholder is beneficially entitled to a proportion of the underlying assets of the CCF in accordance with their unit holding ...

In applying these principles to The Fund, UF and its Sub-Funds,

•         The FMC as manager holds legal title to the assets.

•         The Custodian acts to safeguard the assets.

•         The assets are not held by the FMC or Custodian for their own benefit, but they act for the interests of The Fund, which is the only unitholder of UF and its Sub-Funds.

•         The Fund is beneficially entitled to the income of UF and its Sub-Funds.

Based upon the above rights and obligations, a trust relationship exists between The Fund, UF, FMC and Custodian.

The trust relationship outlined above has the same characteristics as the examples provided in the OECD Commentaries at paragraph 12.4, being the Sub-Funds, are the direct recipients of the dividend income paid by Australian residents, and the right to use and enjoy the dividend income is constrained by the contractual obligations of the UF to hold the payment for the sole benefit of, and reinvest it on behalf of The Fund, as the only unit holder in the Sub-Funds of UF for The Fund to access if and when it requires those funds.

Therefore, The Fund is the 'beneficial owner' of the dividend income paid by the Australian resident companies for the purposes of the Swiss Convention.

This is further supported by the Swiss tax treatment of The Fund and the income arising through UF and its Sub-Funds. UF and its Sub-Funds are not subject to Swiss income tax and are fiscally transparent. The income of the relevant Sub-Funds is considered to be the income of The Fund as the sole investor in UF.

As such, it can be concluded that The Fund is the beneficial owner of the dividends paid from Australia to UF's Sub-Funds for the purposes of the Swiss Convention.

The Fund holds directly no more than 10 per cent of the voting power in the companies paying the dividends

The Fund holds directly no more than 10 per cent of the voting power in the Australian resident companies paying dividends from the investments held through UF and the dividend yielding Sub-Funds.

Therefore, this condition is satisfied.

Pension scheme and investment income is exempt from Swiss tax

As established above, The Fund is a pension scheme, pursuant to the Swiss Convention, and is exempt from tax in Switzerland.

Therefore, this condition is satisfied.

Other provisions of Article 10 of the Swiss Convention

Paragraphs 7 and 9 of Article 10 of the Swiss Convention operate to limit the application of subparagraph 4d) of Article 10 of the Swiss Convention in certain circumstances.

These paragraphs do not apply for the following reasons:

•         The Fund does not carry on a business through a permanent establishment situated in Australia and does not perform independent personal services from a fixed base in Australia.

•         The Australian resident companies that pay dividends from the investments held through UF and its Sub-Funds, A and B, are not dual residents of both Australia and Switzerland, pursuant to paragraph 1 of Article 4 of the Swiss Convention. As determined above, The Fund is also a resident of Switzerland.

Conclusion

The Fund is a Swiss pension scheme whose investment income is exempt from Swiss tax. In addition, The Fund is the beneficial owner of dividends paid by Australian resident companies from its investments held through UF and its Sub-Funds. Furthermore, The Fund holds directly no more than 10 per cent of the voting power in the Australian resident companies paying dividends.

Therefore, subparagraph 4d) of Article 10 of the Swiss Convention will apply to the dividends paid to The Fund from its Australian investments held through UF and its Sub-Funds, such that the dividends shall not be taxed in Australia.