Private ruling: Exemption from income tax and withholding tax
Published: June 2012
Ruling period: Financial year ended 30 June 2007 | Financial year ended 30 June 2008 | Financial year ended 30 June 2009 | Financial year ended 30 June 2010 | Financial year ended 30 June 2011 | Financial year ending 30 June 2012 | Financial year ending 30 June 2013 | Financial year ending 30 June 2014 | Financial year ending 30 June 2015 | Financial year ending 30 June 2016
Date scheme commenced: 1 July 2006

Ruling: Q1: Is the trustee of the overseas based superannuation fund excluded from liability to withholding tax on its interest and/or dividend income derived from Australia under paragraph 128B(3)(jb) of the Income Tax Assessment Act 1936 (ITAA 1936)? | A1: Yes. | Q2: Is interest and/or dividend income derived by the trustee of the overseas based superannuation fund non-assessable income of the fund under section 128D of the ITAA 1936? | A2: Yes.

Relevant facts and circumstances: This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling. The applicant has applied for a private ruling for the superannuation fund for foreign residents. The application includes the following documentation: · A statement from the trustee of the overseas based superannuation fund (the fund) confirming that the fund is established in a country outside Australia, the fund is established and is maintained and applied for the sole purpose of providing superannuation benefits for persons other than persons who are or would ordinarily be or become residents of Australia or residents of a Territory of the Commonwealth, the central management and control of the fund is carried on outside Australia by persons none of whom is a resident of Australia or a resident of a Territory of the Commonwealth and the fund is not one for which an amount has been set aside, or to which an amount has been paid by a taxpayer that is an amount that has been allowed or is allowable as a deduction under any provision of the Act. · A statement from the trustee of the fund, confirming that the fund is an indefinitely continuing fund and a provident, benefit, superannuation or retirement fund, was established in a foreign country, was established and is maintained only to provide benefits for individuals who are not Australian residents, the central management and control of the fund is carried on outside Australia by entities none of whom is an Australian resident, an amount paid to the fund or set aside for the fund has not been or cannot be deducted under the ITAA 1997 and a tax offset has not been allowed or is not allowable for such an amount · Letters for the 2008, 2010 and 2011 years, from the tax authorities in the country of residence of the fund, certifying that the fund is a trust forming part of a pension, profit sharing or stock bonus plan which is exempt from taxation in that country. · Copies of the financial statements for the 2006, 2008, 2009, 2010 and 2011 years. · A copy of the fund document which provides details of the benefits provided by the fund and the rules.

Relevant legislative provisions: Income Tax Assessment Act 1936 Subsection 6(1) | Income Tax Assessment Act 1936 Paragraph 128B(3)(jb). | Income Tax Assessment Act 1936 Section 128D. | Income Tax Assessment Act 1997 Section 118-520.

Reasons for decision: Summary: While these reasons are not part of the private ruling, we provide them to help you to understand how we reached our decision. For the financial year ended 30 June 2007, paragraph 128B(3)(jb) of the ITAA 1936 excludes interest and dividend income from withholding tax where that income: i. is derived by a non-resident that is a foreign superannuation fund; 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. The term 'foreign superannuation fund' is defined in subsection 6(1) of the ITAA 1936 as follows: foreign superannuation fund means, subject to subsection 6(7A), a provident, benefit, superannuation or retirement fund: (a) that was established in a country outside Australia; (b) that was established, and is maintained and applied, for the sole purpose of providing superannuation benefits for persons other than persons who are, or would ordinarily be or become, residents of Australia or residents of a Territory (even if pensions are paid out of the fund to the latter persons); and (c) the central management and control of which is carried on outside Australia by persons none of whom is a resident of Australia or a resident of a Territory; not being a fund for which an amount has been set aside, or to which an amount has been paid, by a taxpayer that is an amount that has been allowed or is allowable as a deduction, or in respect of which a rebate of tax has been allowed or is allowable under any provision of this Act. Perusal of the rules indicates that the fund satisfies the definition of a foreign superannuation fund for the purposes of subsection 6(1) of the ITAA 1936. The statement by the trustee of the fund also confirms that the requirements of this definition are met. In addition, the certification from the tax authorities in the country of residence of the fund confirms that the fund is exempt from income tax in that country. Accordingly, the interest and/or dividend income of the fund is excluded from withholding tax pursuant to paragraph 128B(3)(jb) of the ITAA 1936. Section 128D of the ITAA 1936 provides that interest and dividend income that is excluded from withholding tax pursuant to paragraph 128B(3)(jb) is not assessable income. For the financial years ended 30 June 2008 and onwards, paragraph 128B(3)(jb) of the ITAA 1936 excludes interest and dividend income from withholding tax where that income: i. is derived by a non-resident that is a superannuation fund for foreign residents; and ii. consists or 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. The term 'superannuation fund for foreign residents' is defined in section 118-520 of the Income Tax Assessment Act 1997 (ITAA 1997) as follows: 118-520(1) A fund is a superannuation fund for foreign residents at a time if: (a) at that time, it is: (i) an indefinitely continuing fund; and (ii) a provident, benefit, superannuation or retirement fund; and (b) it was established in a foreign country; and (c) it was established, and is maintained at that time, only to provide benefits or individuals who are not Australian resident; and (d) at that time, its central management and control is carried on outside Australia by entities none of whom is an Australian resident. 118-520(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. Perusal of the rules indicates that the fund satisfies the definition of a superannuation fund for foreign residents for the purposes of section 118-520 of the ITAA 1997. The statement by the trustee of the fund also confirms that the requirements of this definition are met. Accordingly, the interest and/or dividend income of the fund is excluded from withholding tax and is not assessable income.

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.