Private ruling: Superannuation fund for foreign residents - withholding tax
Date of advice: 8 February 2022
Published: April 2022
Ruling period: Year ending 30 June 20XX | Year ending 30 June 20XX | Year ending 30 June 20XX | Year ending 30 June 20XX | Year ending 30 June 20XX
Date scheme commenced: 1 July 20XX

Ruling: Q1: Is the Fund excluded from liability to withholding tax on interest, dividend and non-share dividend income derived from its Australian investments as listed in the Ruling, in accordance with paragraph 128B(3)(jb) of the Income Tax Assessment Act 1936 (ITAA 1936)? | A1: Yes. | Q2: Is the interest, dividend and non-share dividend income derived by the Fund from its Australian investments listed in this Ruling not assessable and not exempt income of the Fund under section 128D of the ITAA 1936? | A2: Yes.

Relevant facts and circumstances: The Fund The Fund was incorporated by deed in a foreign country (Country A) and has been in operation as a company pension fund under the Articles of Association. The Fund is a resident of Country A and is exempt from taxation in accordance with the pension fund laws of Country A. The Articles of Association outline provisions made in the form of winding up and rights on the winding up of the Fund. However, the Fund intends to be an indefinitely continuing fund with no pre-determined end date. The Fund is managed in Country A by the General Board whom are not Australian residents. The members of the Fund are limited to employees or former employees of certain employers in Country A. The Fund's objective is to provide its members pensions and/or to pay other benefits in respect of old age, occupational disability and in respect of death of the members or former members. The Fund does not provide benefits as a result of events other than old age retirement, disability or death. Other facts A contribution paid to the Fund or set aside for the Fund has not been or cannot be deducted under the Income Tax Assessment Act 1997 . A tax offset has not been allowed or is not allowable for an amount paid to the Fund or set aside for the Fund. The income of the Fund is not non-assessable non-exempt income of the Fund because of either: a. Subdivision 880-C of the ITAA 1997, or b. Division 880 of the Income Tax (Transitional Provisions) Act 1997 . The Fund's Australian investments The Fund is in receipt of Australian sourced income which includes interest, dividends and non-share dividends. In respect of the Fund's equity investments: • The Fund holds less than 10% of the total participation interest in the Fund's equity investments. • The Fund does not hold any right to appoint a person to a board, committee, or similar, either directly or indirectly; • The Fund has not entered into or received any side letters, arrangements or agreements; • The Fund does not hold any veto rights on security holder votes; and • The Fund does not hold any other influence potentially of a kind described in subsection 128B(3CD) of the ITAA 1936.

Relevant legislative provisions: 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: The Fund is excluded from liability to withholding tax on interest, dividend and non-share dividend income derived from its Australian investments as listed in Appendix 1 of this Ruling, in accordance with paragraph 128B(3)(jb) of the ITAA 1936. | Detailed Reasoning - Detailed reasoning: Broadly, paragraph 128B(3)(jb) of the ITAA 1936 provides an exclusion from withholding tax for interest, dividends and non-share dividends derived by a superannuation fund for foreign residents (subject to the satisfaction of certain conditions). For the exclusion to apply, the interest, dividend and/or non-share dividend income must be: Further, from 1 July 2019, the extra requirements in subsection 128B(3CA) of the ITAA 1936 must also be met. | Detailed Reasoning - The Fund is a non-resident: The Fund was incorporated by Deed in Country A and is confirmed to be a resident of Country A. Therefore, the Fund satisfies this requirement. | Detailed Reasoning - Superannuation fund for foreign residents: Section 118-520 of the ITAA 1997 provides: (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 for individuals who are not Australian residents; and (d) at that time, its central management and control is carried on outside Australia by entities none of whom is an Australian resident. (2) However, a fund is not a superannuation fund for foreign residents if: (a) an amount is paid to the fund or set aside for the fund has been or can be deducted under this Act; or (b) a *tax offset has been allowed or is allowable for such an amount. | Detailed Reasoning - 1. An indefinitely continuing fund: The Fund was incorporated in Country A and has been in operation as a company pension fund under the Articles of Association. The Articles of Association outline the provisions made in the form of the winding up and rights on the winding up of the Fund. Notwithstanding this, the Fund has provided an attestation that confirms that the Fund is an indefinitely continuing fund and the Articles of Association or the Pension Regulations do not contain a cessation date. Therefore, the Fund satisfies this requirement. | Detailed Reasoning - 2. A provident, benefit, superannuation or retirement fund: The phrase 'provident, benefit, superannuation or retirement fund' under subparagraph 118-520(1)(a)(ii) of the ITAA 1997 is not defined in either the ITAA 1997 or the ITAA 1936. ATO Interpretative Decision ATO ID 2009/67 Income Tax: Superannuation fund for foreign residents (ATO ID 2009/67) provides guidance on the meaning of the phrase 'provident, benefit, superannuation or retirement fund': None of the four descriptors 'provident', 'benefit', 'superannuation' or 'retirement fund' in subparagraph (a)(ii) of the definition of 'superannuation fund for foreign residents' in section 118-520 of the ITAA 1997 are defined. The terms have, however, been the subject of judicial consideration. The courts have held that for a fund to be a 'provident, benefit, superannuation or retirement fund', the fund 's sole purpose must be to provide superannuation benefits, that is, benefits to a member upon the member reaching a prescribed age or upon their retirement, death or other cessation of employment ( Scott v. FC of T (No 2) (1966) 14 ATD 333; (1966) 10 AITR 290, per Windeyer J; Mahony v. FC of T (1967) 14 ATD 519, per Kitto J; Walstern Pty Ltd v. Commissioner of Taxation (2003) 138 FCR 1; 2003 ATC 5076; (2003) 54 ATR 423, per Hill J and Cameron Brae Pty Ltd v. Federal Commissioner of Taxation (2007) 161 FCR 468; 2007 ATC 4936; (2007) 67 ATR 178, per Stone and Allsop JJ). The above establishes that for a fund to qualify as a provident, benefit, superannuation or retirement fund, it must have the sole purpose of providing retirement benefits or benefits in other allowable contemplated contingencies (such as death, disability or serious illness). The purpose of the Fund is to provide pensions benefits in respect of old age, disability or death of the members according to the Fund's Articles of Association. The Fund's pension schemes have a target retirement age of for pension benefits and provides for disability benefits and benefits for partners and children where a member dies. Therefore, it can be concluded that the sole purpose of the Fund is to provide retirement benefits or benefits in other allowable contemplated contingencies and, as such, satisfy this requirement. | Detailed Reasoning - 3. Established in a foreign country: The Fund was established under the Articles of Association in Country A. Therefore, the Fund satisfies this requirement. | Detailed Reasoning - 4. Was established and maintained only to provide benefits for individuals who are not Australian residents: The Fund was established to provide old age pension, disability and death benefits to the Fund Members according to the Articles Association and the Pension Regulations. It is considered that the possibility of a very small number of Members being returned residents or becoming Australian residents after ceasing eligible employment is incidental and should not be taken to conclude that the Fund, in this case, has not been established and is not maintained only to provide benefits for non-residents, based on the rules and operation of the Fund. Therefore, the Fund satisfies this requirement that it was established and maintained only to provide benefits for individuals who are not Australian residents. | Detailed Reasoning - 5. Central management and control (CM&C): Paragraphs 20 and 21 of Taxation Ruling TR 2008/9 Income tax: meaning of 'Australian superannuation fund' in subsection 295-95(2) of the Income Tax Assessment Act 1997 (TR 2008/9) states in respect of the central management and control (CM&C) of a superannuation fund: 20. The CM&C of a superannuation fund involves a 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: • formulating the investment strategy for the fund; • reviewing and updating or varying the fund's investment strategy as well as monitoring and reviewing the performance of the fund's 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. 21. The other principal areas of operation of a superannuation fund that form part of the day-to-day or operational side of the fund's activities will not constitute CM&C. These activities do not form part of the CM&C of the fund because they are not of a strategic or high level nature. Rather, these activities are of a more formalistic or administrative nature. Examples of such activities include the acceptance of contributions that are made on a regular basis, the actual investment of the fund's assets, the fulfilment of administrative duties and the preservation, payment and portability of benefits. Furthermore, paragraph 10 and 11 of the Taxation Ruling TR 2018/5 Income tax: Central Management and Control test of residency (TR 2018/5) states: 10. Central management and control refers to the control and direction of a company's operations. It does not refer to a physical location in which the control and direction of a company is located, and may ultimately be exercised in more than one location. 11. The key element in the control and direction of a company's operations is the making of high-level decisions that set the company's general policies, and determine the direction of its operations and the type of transactions it will enter. The Fund is managed in Country A by the General Board, which is made up of appointed individuals none of whom are Australian residents. Furthermore, the Fund has also advised that its CM&C is carried on outside of Australia by entities none of whom are Australian residents. Based on the above, it is reasonable to conclude that the CM&C of the Fund occurs in Country A by entities that are not Australian residents. Therefore, the Fund satisfies this requirement. | Detailed Reasoning - 6. Subsection 118-520(2): The Fund has advised that a contribution paid to the Fund or set aside for the Fund has not been or cannot be deducted under the ITAA 1997 and in addition, a tax offset has not been allowed or is not allowable for an amount paid to the Fund or set aside for the Fund. Therefore, the Fund satisfies these requirements. | Detailed Reasoning - Conclusion on section 118-520 of the ITAA 1997: As all of the above requirements are satisfied, the Fund meets the requirements of being a superannuation fund for foreign residents as defined by section 118-520 of the ITAA 1997. Sub paragraph 128B(3)(jb)(ii) of the ITAA 1936 Paragraph 128B(3)(jb) of the ITAA 1936 will only apply to interest, or to dividends and non-share dividends paid by Australian resident companies. The Fund is in receipt of Australian sourced income which includes interest, dividends or non-share dividends from Australian investments. Therefore, the Fund will satisfy this requirement. | Detailed Reasoning - The Fund is exempt from income tax in the country in which the non-resident resides: The Fund is a resident of Country A and is exempt from taxation in accordance with the pension fund laws of Country A. Therefore, the Fund satisfies this requirement. | Detailed Reasoning - Subsection 128B(3CA) of the ITAA 1936: The Treasury Laws Amendment (Making Sure Foreign Investors Pay Their Fair Share of Tax in Australia and Other Measures) Act 2019 introduced extra requirements that must be met for paragraph 128B(3)(jb) of the ITAA 1936 to apply. Generally, these extra requirements apply to income derived from 1 July 2019. Relevantly: • The Fund must satisfy the 'portfolio interest test' in relation to the test entity (subsection 128B(3CC) of the ITAA 1936) • The Fund must satisfy the 'influence test' (subsection 128B(3CD) of the ITAA 1936) in relation to the test entity, and • The income cannot otherwise be non-assessable non-exempt income of the Fund because of: a. Subdivision 880-C of the ITAA 1997, or b. Division 880 of the Income Tax (Transitional Provisions) Act 1997 . | Detailed Reasoning - 1. The Fund satisfies the 'portfolio interest test': Subsection 128B(3CC) of the ITAA 1936 states: A superannuation fund satisfies the portfolio interest test in this subsection in relation to the test entity at a time if, at that time, the total participation interest (within the meaning of the Income Tax Assessment Act 1997 ) the superannuation fund 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 (within the meaning of that Act) 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. The Fund holds less than 10% of the total participation interests in each of the Australian investments. Further, the Fund would hold less than 10% of the total participation interests in each Australian investment in the circumstances detailed in paragraph 128B(3CC)(b) of the ITAA 1936. Therefore, the Fund satisfies the 'portfolio interest test' in respect of its Australian investments. | Detailed Reasoning - 2. The Fund satisfies the 'influence test': Subsection 128B(3CD) of the ITAA 1936 states: A superannuation fund 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) the superannuation fund: (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 the superannuation fund (whether those directions, instructions or wishes are expressed directly or indirectly, or through the superannuation fund 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 128B(3CD)(a) of the ITAA 1936, assesses whether the Fund 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 Fund 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 Fund, in its own right, holds the ability to approve or veto decisions which go to the control or direction of the test entity. Sub-test 2 of the influence test, as contained in paragraph 128B(3CD)(b) of the ITAA 1936, 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 Fund. Relevantly, in respect of the Fund's investments listed in this Ruling: • the Fund does not hold more than 10% of the total participation interests in each entity in the circumstances detailed in paragraph 128B(3CC)(b) of the ITAA 1936 • The Fund does not hold any right to appoint a person to a board, committee, or similar, either directly or indirectly • The Fund has not entered into or received any side letters, arrangements or agreements • The Fund does not hold any veto rights on security holder votes • The Fund does not hold any other influence potentially of a kind described in subsection 128B (3CD) of the ITAA 1936 Based on the above, the Commissioner accepts that the Fund does not have influence of a kind described in subsection 128B(3CD) of the ITAA 1936. | Detailed Reasoning - 3. Otherwise non-assessable non-exempt: The Fund has advised that income received by the Fund will not be non-assessable non-exempt income because of Subdivision 880-C of the ITAA 1997 or Division 880 of the Income Tax (Transitional Provisions) Act 1997 . Therefore, the Fund satisfies this requirement. | Detailed Reasoning - Conclusion: Having regard to the requirements of paragraph 128B(3)(jb) of the ITAA 1936, the Fund is excluded from withholding tax in relation to interest, dividend and non-share dividend income derived from its investments listed in the ruling. | Summary: Interest, dividend and non-share dividend income derived by the Fund is not assessable and not exempt income of the Fund under section 128D of the ITAA 1936. | Detailed Reasoning - Detailed reasoning: Section 128D of the ITAA 1936 provides as follows: Income other than income to which section 128B applies by virtue of subsection (2A), (2C) or (9C) of that section upon which withholding tax is payable, or upon which withholding tax would, but for paragraph 128B(3)(ga),(jb) or (m), section 128F, section 128FA or section 128GB, be payable, is not assessable income and is not exempt income of a person. Dividend and interest income derived by the Fund would be subject to withholding tax under subsections 128B(1) and 128B(2) of the ITAA 1936 respectively, but for the operation of the withholding tax exemption under paragraph 128B(3)(jb) of the ITAA 1936. As paragraph 128B(3)(jb) of the ITAA 1936 is specifically referred to in section 128D of the ITAA 1936 any interest, dividend or non-share dividend income derived by the Fund will be not assessable and not exempt income under section 128D of the ITAA 1936.

derived by a superannuation fund for foreign residents (as defined in section 118-520 of the ITAA 1997), and | exempt from income tax in the country in which the superannuation fund for foreign residents arise.