Private ruling: Sovereign immunity - withholding tax - transitional provisions
Date of advice: 24 September 2019
Published: November 2019
Ruling period: 1 July 20XX to 30 June 20XX
Date scheme commenced: 1 July 20XX

Ruling: Q1: Is ordinary and statutory income derived by the Foreign Entity as a return on the investments that were acquired on or before 27 March 2018 non-assessable non-exempt income due to the operation of section 880-5 of the Income Tax (Transitional Provisions) Act 1997 (IT(TP)A 1997)? | A1: Yes. | Q2: Will any capital gain arising to the Foreign Entity in respect of listed equity investment assets comprised within the Fund 1 that were acquired on or before 27 March 20XX be disregarded pursuant to section 880-15 of the IT(TP)A 1997? | A2: Yes. | Q3: Does paragraph 128B(3)(n) of the Income Tax Assessment Act 1936 (ITAA 1936) apply to exclude the Foreign Entity from liability to withholding tax on income that is non-assessable non-exempt income due to the operation of Division 880 of the IT(TP)A 1997? | A3: Yes. | Q4: Does subsection 840-805(9) of the Income Tax Assessment Act 1997 (ITAA 1997) apply to exclude the Foreign Entity from liability to withholding tax on income that is non-assessable non-exempt income due to the operation of Division 880 of the IT(TP)A 1997? | A4: Yes.

Relevant facts and circumstances: The Foreign Entity Foreign Entity is a resident of Foreign State for Foreign State's tax purposes. Foreign Entity was established by an act of the Foreign State and its activities are exempt from the Foreign State's tax. The Foreign Entity is a separate legal entity and its issued capital is owned by the Foreign State. Foreign Entity performs public tasks and manages assets on behalf of the Foreign State. Foreign Entity invests in Australia via its Foreign Fund. The Foreign Entity may buy and sell debt instruments that are issued or guaranteed by the Foreign State. The Foreign Entity's manages the Foreign exchange reserves for Foreign State. The Governor of the Foreign Entity is responsible for the day to day management of the Foreign Entity. The Foreign State government entrusts the Foreign Entity to manage two funds: Fund 1 and Fund 2 in accordance with Foreign State law. Fund 1 Fund 1 is the long term portfolio of the foreign exchange reserves of the Foreign State. The beneficial owner of the assets of Fund 1, along with the income and capital gains generated by those assets, is the Foreign Entity. A dedicated asset management department within the Foreign Entity manages the assets of Fund 1. The Foreign Entity manages Fund 1 in accordance with the asset allocation rules laid down by the Foreign State. Fund 1 is used for transactions in the foreign exchange market as part of the conduct of monetary policy or in the interest of promoting financial stability to meet the Foreign Entity's international commitments. Fund 1's long term portfolio is invested in equities and fixed income instruments. The Foreign Entity's Executive Board issues principles for the management of Fund 1 and has delegated responsibility for issuing supplementary guidelines to the Governor of the Foreign Entity.

Relevant legislative provisions: Income Tax Assessment Act 1936 section 128B | Income Tax Assessment Act 1997 section 840-805 | Income Tax (Transitional Provisions) Act 1997 section 880-5

Reasons for decision: Detailed Reasoning - Background: Schedule 4 of the Treasury Laws Amendment (Making Sure Foreign Investors Pay Their Fair Share of Tax in Australia and Other Measures) Act 2019 amended the ITAA 1936 and the ITAA 1997 to improve the integrity of the income tax law to limit access to tax concessions for foreign investors by codifying and limiting the scope of the sovereign immunity tax exemption. Section 880-1 of the IT(TP)A 1997 provides that the amendments to codify and limit the scope of the sovereign immunity tax exemption apply to the 2019-20 income year and to later income years. However, transitional rules may apply to income derived from investments of a sovereign entity held at the announcement date of the amendments (27 March 2018), subject to the satisfaction of certain requirements. | Detailed Reasoning - Transitional provisions: Section 880-5 of the IT(TP)A 1997 provides transitional relief for amounts of ordinary and statutory income derived by a sovereign entity where the following requirements are met: An amount of ordinary income or statutory income of a sovereign entity for an income year is not assessable income and is not exempt income if: (a) the amount is a return on an investment asset under a scheme; and (b) the sovereign entity acquired the investment asset on or before 27 March 2018 under the scheme; and (c) on or before 27 March 2018, the sovereign entity applied for a private ruling in relation to the scheme; and (d) before 1 July 2026, the Commissioner gave the entity a private ruling confirming that income from the investment asset was not subject to income tax, or withholding tax, because of the doctrine of sovereign immunity; and (e) the private ruling applied during at least part of the period: (i) starting on 27 March 2018; and (ii) ending before 1 July 2026; regardless of whether the private ruling started to apply before 27 March 2018, or ceased to apply before 1 July 2026; and (f) the scheme carried out is not materially different to the scheme specified in the private ruling; and (g) the income year is: (i) unless subparagraph (ii) applies - the 2025-26 income year or an earlier income year; or (ii) if the last income year to which the private ruling relates is a later income year than the 2025-26 income year - that later income year, or an earlier income year. | Detailed Reasoning - Analysis: 1. An amount of ordinary income or statutory income Foreign Entity will receive ordinary and/or statutory income as a return on the equity investments and debt interests in Australia. Therefore, this requirement is satisfied. 2. Sovereign entity A 'sovereign entity' is defined in section 880-15 of the ITAA 1997 as: (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) hold 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 ITAA 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. Foreign Entity is a foreign resident created by the Foreign State by force of law. Under the Statute, Foreign Entity is a separate legal entity, owned by Foreign State. Therefore, Foreign Entity is a foreign government agency as defined in subsection 995-1(1) of the ITAA 1997 and is therefore a sovereign entity under paragraph 880-15(b) of the ITAA 1997. Therefore, this requirement is satisfied. Foreign Entity will receive ordinary and/or statutory income as a return on the investment assets (shares in companies, units in trusts and debt investments) under a scheme. Therefore, this requirement is satisfied. Foreign Entity acquired the Australian investments on or before 27 March 20XX. Therefore, this requirement is satisfied. It is noted the transitional provisions will not apply in respect of ordinary or statutory income received as a return on assets acquired by Foreign Entity after 27 March 20XX. Foreign Entity applied for a private ruling in relation to the scheme on or before 27 March 20XX. Therefore, this requirement is satisfied. A private ruling was issued to Foreign Entity in respect of a withholding tax exemption for sovereign immunity before 1 July 20XX. Therefore, this requirement is satisfied. Foreign Entity's private ruling applied during the relevant legislated period. Therefore, this requirement is satisfied. The scheme is not materially different to the scheme specified in the previous private ruling that was issued. Therefore, this requirement is satisfied. The ruling period of this ruling is 1 July 20XX to 30 June 20XX. Therefore, this requirement is satisfied. | Detailed Reasoning - Conclusion: All the requirements in section 880-5 of the IT(TP)A 1997 are satisfied. | Detailed Reasoning - Question 2: Will any capital gain arising to Foreign Entity in respect of listed equity investment assets comprised within the Fund 1 acquired on or before 27 March 20XX be disregarded pursuant to section 880-15 of the IT(TP)A 1997? | Detailed Reasoning - Detailed Reasoning: Section 880-15 of the IT(TP)A 1997 provides that a capital gain of a sovereign entity from a Capital Gains Tax (CGT) event that happens in relation to a CGT asset is disregarded if the following conditions are met: (a) the capital gain arises under a scheme; 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 880-5(b) to (g) are satisfied (on the assumption that reference in those paragraphs to the investment asset were references to the CGT asset). | Detailed Reasoning - Analysis: 1. The capital gain arises under a scheme Foreign Entity as part of its management of Fund 1, purchases Australian equities. The assets satisfy the definition of CGT assets in section 108-5 of the ITAA 1997 (which includes any kind of property, or, a legal or equitable right which is not property). The disposal of the equity investment assets would trigger a CGT event in which the Foreign Entity may make a capital gain under the scheme. Therefore, this requirement is satisfied. 2. CGT asset is a membership interest, non-share equity interest or debt interest in another entity The CGT assets that are covered by this private ruling are either membership interests or non-share equity interests in a company or trust. Therefore, this requirement is satisfied. 3. The requirements of paragraphs 880-5(b) to (g) have been satisfied. For the reasons outlined in the answer to Question 1, the requirements in paragraphs 880-5(b) to (g) of the IT(TP)A 1997 are satisfied. | Detailed Reasoning - Conclusion: All the requirements in section 880-15 of the IT(TP)A 1997 are satisfied. | Detailed Reasoning - Question 3: Does paragraph 128B(3)(n) of the ITAA 1936 apply to exclude the Foreign Entity from liability to withholding tax on income that is non-assessable non-exempt income due to the operation of Division 880 of the IT(TP)A 1997? | Detailed Reasoning - 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 IT(TP)A 1997.' The income derived by Foreign Entity as a return on its Australian investment assets is considered non-assessable non-exempt income under Division 880 of the IT(TP)A 1997. Therefore, Foreign Entity is excluded from liability to withholding tax on its interest and/or dividend income under paragraph 128B(3)(n) of the ITAA 1936. | Detailed Reasoning - Question 4: Does subsection 840-805(9) of the ITAA 1997 apply to exclude the Foreign Entity from liability to withholding tax on income that is non-assessable non-exempt income due to the operation of Division 880 of the IT(TP)A 1997? | Detailed Reasoning - Detailed reasoning: Subject to subsection 840-805(9) of the ITAA 1997, subsection 840-805(1) of the ITAA 1997 imposes a liability for MIT withholding tax on amounts paid to you in accordance with subsections 840-805(2), (3) and (4) of the ITAA 1997. Subsection 840-805(9) of the ITAA 1997 states that subsections 840-805(2), (3) and (4) of the ITAA 1997 do not apply to you if the payments made to you relate to an amount that is non-assessable non-exempt income because of: (a) Division 880 of the ITAA 1997, or (b) Division 880 of the IT(TP)A 1997. The income derived by Foreign Entity as a return on its Australian investment assets is considered non-assessable non-exempt income under Division 880 of the IT(TP)A 1997. As such, Foreign Entity is excluded from liability to withholding tax on amounts it receives under subsections 840-805(2), (3) and (4) of the ITAA 1997 in accordance with subsection 840-805(9) of the ITAA 1997.

Foreign Entity previous private ruling: Foreign Entity has a previous private ruling relating to sovereign immunity. | The private ruling applied within the income tax years prescribed at subsection 880-5(e) of the IT(TP)A 1997. | Foreign Entity's investments in Australia: Foreign Entity acquired the investments listed in its previous private ruling before 27 March 2018. | Foreign Entity derives interest, dividends, trust distributions, and capital gains from its investment in Australia. | The current scheme is not materially different to the scheme specified in the previous private ruling. | Investment asset acquired on or before 27 March 20XX | Applied for a private ruling on or before 27 March 20XX | Private ruling made before 1 July 20XX | Private ruling applied during the relevant period | Scheme not materially different