Private ruling: Residency status of superannuation fund
Published: May 2012
Ruling period: Year ending 30 June 2013
Date scheme commenced: 1 July 2011

Ruling: Q1: Is the fund an Australian superannuation fund as defined in subsection 295-95(2) of the Income Tax Assessment Act 1997 in the 2011-12 income year? Advice/Answers Yes.


Relevant legislative provisions: Income Tax Assessment Act 1997 Section 295-95. | Income Tax Assessment Act 1997 Subsection 295-95(2). | Income Tax Assessment Act 1997 Paragraph 295-95(2)(a). | Income Tax Assessment Act 1997 Paragraph 295-95(2)(b). | Income Tax Assessment Act 1997 Paragraph 295-95(2)(c). | Income Tax Assessment Act 1997 Subsection 295-95(3). | Income Tax Assessment Act 1997 Subsection 295-95(4).

Reasons for decision: Detailed Reasoning - Summary of decision: The Fund is an Australian Superannuation Fund in the 2011-12 and 2012-13 income year as: · it was established in Australia; · the central management and control of the Fund is ordinarily in Australia; and · the Fund does not have any active members. | Detailed Reasoning - Detailed reasoning: Subsection 295-95(2) of the Income Tax Assessment Act 1997 (ITAA 1997) defines what is an Australian superannuation fund. Subsection 295-95(2) of the ITAA 1997 provides that: A superannuation fund is an Australian superannuation fund at a time, and for the income year in which that time occurs, if: · the fund was established in Australia, or any asset of the fund is situated in Australia at that time; and · at that time, the central management and control of the fund is ordinarily in Australia; and · at that time either the fund had no member covered by subsection (3) (an active member ) or at least 50% of: · the total market value of the fund's assets attributable to superannuation interests held by active members; or · the sum of the amounts that would be payable to or in respect of active members if they voluntarily ceased to be members; · is attributable to superannuation interests held by active members who are Australian residents. There are three tests that a fund must satisfy in order to be treated as an Australian superannuation fund as defined in subsection 295-95(2) of the ITAA 1997. If a fund fails to satisfy any one of the conditions at a particular time, it will not be an Australian superannuation fund at that time, even if it satisfies the other two conditions. The Commissioner of Taxation has issued Taxation Ruling TR 2008/9 entitled Income tax: meaning of Australian superannuation fund in subsection 295-95(2) of the Income Tax Assessment Act 1997 (TR 2008/9). The ruling represents the views of the Commissioner and sets out the Commissioner's interpretation of the definition of Australian superannuation fund. | Detailed Reasoning - Test One: Fund established in Australia or any asset of the fund is situated in Australia: The first test that a superannuation fund must satisfy to be an Australian superannuation fund at that time is that the fund was either established in Australia, or any asset of the fund is situated in Australia at the relevant time. This is a question of fact. The establishment of the fund requirement in paragraph 295-95(2)(a) of the ITAA 1997 is a once and for all requirement. That is, once it is determined that a fund was established in Australia, it will satisfy the first test at all relevant times. In the present case, the Fund was established in Australia. Therefore, the requirement under paragraph 295-95(2)(a) of the ITAA 1997 has been satisfied. | Detailed Reasoning - Test Two: The CM&C of the fund ordinarily in Australia: The second test, and one of the key requirements that a superannuation fund must satisfy to be an Australian superannuation fund at a particular time, is that the Central Management and Control (CM&C) of the fund is ordinarily in Australia. Generally, the location of where important decisions are made is the location of the relevant management and control. The concept of CM&C is not defined in the ITAA 1997 or in the Income Tax Assessment Act 1936 (ITAA 1936). In addition, the Explanatory Memorandum to the Superannuation Legislation Amendment (Simplification) Act 2007 (which inserted section 295-95 of the ITAA 1997) does not provide any guidance as to its meaning. Therefore it must be given its ordinary or common law meaning. The policy intention of the amendment was to simplify the scope of the superannuation fund residency definition and give effect to a minor policy change in respect of the application of the CM&C test. The concept of CM&C was developed by the courts as a common law rule for determining the residence of a company. To determine the location of the CM&C of a fund at a point in time, it is necessary to consider what constitutes the CM&C of a fund and who it is that exercises the CM&C of a fund. The CM&C of a superannuation fund involves the 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 the performance of the following duties and activities: · formulating the investment strategy for the fund; · reviewing and updating or varying the funds investment strategy as well as monitoring and reviewing the performance of the funds 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. Establishing who is exercising the CM&C of the fund is a question of fact to be determined with reference to the circumstances of each case. While it is the trustee of the fund which has the legal responsibility or duty to exercise the CM&C of a superannuation fund, the mere duty to exercise CM&C does not, of itself, constitute CM&C. If the trustee in fact performs the high level duties and activities of the fund, they will be exercising the CM&C of the fund in practice. | Detailed Reasoning - Paragraph 26 of TR 2008/9 states:: The trustee of a fund may seek external advice relating to the performance of their high level duties and activities. Provided that the trustee in fact makes the strategic and high level decisions for the fund, the circumstance that the trustee acts on or is influenced by such advice does not affect the fact that the trustee is exercising the CM&C of the fund. However, there may be situations where a person other than the trustee is exercising the CM&C of the fund. If a person other than the trustee of the fund independently and without any influence from the trustee performs those duties and activities that constitute the CM&C of the fund, that person is exercising the CM&C of the fund. | Detailed Reasoning - Location of the CM&C: The location of the CM&C of the fund is determined by where the high level and strategic decisions of the fund are made and high level duties and activities are in fact performed. Thus, if the trustees of the fund ordinarily reside overseas (notwithstanding that they may be Australian residents for income tax purposes) then, unless there is evidence to the contrary, the conclusion would be that the CM&C of the fund is overseas. Whether the CM&C of a fund is ordinarily in Australia at a particular time is to be determined by the relevant facts and circumstances of each case. It involves determining whether, in the ordinary course of events, the CM&C of the fund is regularly, usually or customarily exercised in Australia. There must be some element of continuity or permanence if the CM&C of the fund is to be regarded as being ordinarily in Australia. If the CM&C of the fund is being temporarily exercised outside Australia, this will not prevent the CM&C of the fund being ordinarily in Australia at a particular time. | Detailed Reasoning - At paragraph 32 of TR 2008/9 it states:: While the CM&C of a fund can be outside Australia for a period greater than 2 years, the period of absence of the CM&C must still be temporary . Furthermore, if the CM&C of the fund is not temporarily outside Australia, it will not be 'ordinarily' in Australia at a time even if the period of absence of the CM&C is 2 years or less. Whether an absence is temporary must be determined objectively by reference to all the relevant facts and circumstances on a real time basis. That is, it cannot be established in retrospect. | Detailed Reasoning - CM&C - temporary absences: To provide certainty to trustees of superannuation funds, especially trustees of a self-managed superannuation fund (SMSF) (for whom the old 'two year temporary absence rule' was mainly directed), subsection 295-95(4) of the ITAA 1997 was inserted into the definition of 'Australian superannuation fund'. This subsection explains that the CM&C of a superannuation fund is considered to be ordinarily in Australia even if that CM&C is temporarily outside Australia, where it is for a period of not more than two years. Where the trustees are temporarily absent from Australia for a period of up to two years, then subsection 295-95(4) of the ITAA 1997 makes it clear that the CM&C is ordinarily in Australia. On the other hand, it is considered that where the trustees of the fund are absent from Australia for a period greater than two years, the fund will only satisfy the test in subsection 295-95(2) if the trustees can establish that their absence was of a temporary nature. | Detailed Reasoning - At paragraph 33 of TR 2008/9 it states:: The CM&C of a fund will be temporarily outside of Australia if the person or persons who exercise the CM&C of the fund are outside Australia for a relatively short period of time and during that time they exercise the CM&C of the fund overseas. The duration of the absence must either be defined in advance or related (both in intention and fact) to the fulfilment of a specific, passing purpose. Whether an absence is considered to be temporary involves considerations of questions of degree which must be decided by reference to the circumstances of each particular case. In this case whilst Member A and Member B will be overseas it is for a specific purpose. The Members' duration overseas is defined in advance in accordance with an agreement. An agreement states that Member A's overseas employment shall continue until the earliest of: · the completion of a project; · the date which is three years after the start date; and · the date on which the agreement is terminated. As part of the agreement Member A and Member B are entitled to a trip back to Australia each year and both members intend to return to Australia on at least an annual basis. In addition, whilst in Australia both Member A and Member B will review, update or vary the investment strategy and monitor the performance of the Fund's investments and use of funds. Further, the members of the Fund intend to return to Australia on completion of the Agreement. Therefore, whilst the CM&C of the Fund may be outside of Australia for a period greater than two years, the period of absence of the CM&C is temporary. The CM&C of the Fund remains ordinarily in Australia as, at all times, it has been the intention of the members of the Fund to return to Australia. Further, the Members entire period of absence is related to the fulfilment of a specific purpose and all decisions of the Fund will be made within Australia. Therefore, the Fund satisfies the CM&C test under paragraph 295-95(2)(b) of the ITAA 1997. | Detailed Reasoning - Test Three: The active member test: The active member test requires that, where a fund has at least one active member, then the accrued entitlements of Australian resident active members must be 50 per cent or more of the accrued entitlements of all active members of the fund. As defined in subsection 295-95(3) of the ITAA 1997, a member is an active member at a particular time if the member is: · a contributor to the fund at that time; or · an individual on whose behalf contributions have been made, other than an individual: · who is a foreign resident; and · who is not a contributor at that time; and · for whom contributions made to the fund on the individual's behalf after the individual became a foreign resident are only payments in respect of a time when the individual was an Australian resident. The term contributor in the definition of active member is not defined. Therefore, it is to be given its ordinary meaning subject to the context in which it appears. The concept of a contributor within the context of the active member test is directed at establishing the status of a member as a contributor at a particular point in time, not on the specific act of contributing. In this case, you state that the Fund will have no active members for the period the members are based overseas. As the Fund does not have any active members the requirement under paragraph 295-95(2)(c) of the ITAA 1997 has been satisfied. | Detailed Reasoning - Conclusion: For a fund to be considered an Australian superannuation Fund all the conditions under subsection 295-95(2) of the ITAA 1997 have to be satisfied. As all requirements under subsection 295-95(2) of the ITAA 1997 have been satisfied, the Fund is an Australian superannuation fund.

Please check this edited version to be sure that there are no details remaining that you think may allow you to be identified. If you have any concerns about this ruling you wish to discuss, you will find our contact details in the fact sheet. | The Fund is a regulated self-managed superannuation fund. | Member A and Member B are members of the Fund. | The Trustee Company is the trustee of the Fund. | Member A and Member B are directors of the Trustee Company. | The assets of the Fund comprising of bank accounts with Australian financial institutions and shares in listed Australian companies. | Member A has been offered a contract of employment that will see them based overseas. | Member A will be accompanied by Member B overseas. | Member B will not be undertaking any employment while overseas. | It is the intention of both Member A and Member B to return to Australia upon completion of the agreement. | Member A and Member B will return to Australia on at least an annual basis to manage their affairs.