Private ruling: foreign pension fund - withholding
Published: January 2014
Ruling period: Year ended 30 June 2014 | Year ended 30 June 2015 | Year ended 30 June 2016 | Year ended 30 June 2017 | Year ended 30 June 2018
Date scheme commenced: 1 July 2013

Ruling: Questions and answers | 1. Is the trustee of the Master Trust and its participating funds excluded from liability to withholding tax on the interest and dividend income derived from from Australia under paragraph 128B(3)(jb) of the Income Tax Assessment Act 1936 (ITAA 1936)? | Yes. | 2. Is interest and/or dividend income derived from Australia by the trustee of the Master Trust and its participating funds not assessable income of the fund under section 128D of the ITAA 1936? | Yes.

Relevant facts and circumstances: The applicant has applied for a private ruling for the superannuation fund for foreign residents. The application includes the following documentation: · A copy of the Trust deed and the rules of the Master Trustee fund which provide details of the establishment of the fund, the benefits provided by the fund, and the rules governing the fund. · A statement from the trustee of the Master Trustee fund confirming that: o the fund is an indefinitely continuing fund and a provident, benefit, superannuation or retirement fund, o the fund was established in a foreign country, o the fund was established, and is maintained, only to provide benefits for individuals who are not Australian residents, o the central management and control of the fund is carried on outside Australia by entities none of whom is an Australian resident, o an amount paid to the fund or set aside for the fund has not been or cannot be deducted under the ITAA 1997 and o a tax offset has not been allowed or is not allowable for such an amount. · A copy of the financial statements of the Master Trustee fund for the 2012 financial year. Relating to the participating funds · Copies of statements from trustees of participating funds confirming that the participating funds are indefinitely continuing funds and are provident, benefit, superannuation or retirement funds, were established in a foreign country, were established and maintained only to provide benefits for individuals who are not Australian residents, the central management and control of the funds are carried on outside Australia by entities none of whom is an Australian resident, an amount paid to the funds or set aside for the funds has not been or cannot be deducted under the Income Tax Assessment Act 1997 (ITAA 1997) and a tax offset has not been allowed or is not allowable for such an amount. · Letters from the Tax authorities of the overseas country, certifying that each of the participating funds is exempt from tax in respect of interest and dividend income from the overseas country. · The most recent financial reports for each participating fund.

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: Section 128D of the Income Tax Assessment Act 1936 (ITAA 1936) provides that interest and dividend income that is excluded from withholding tax pursuant to paragraph 128B(3)(jb) of the ITAA 1936 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 of interest, or consists of dividends or non share dividends paid by a company that is a resident 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: (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 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 Master Trustee fund and its participating funds 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 trustees of the funds also confirm that the requirements of this definition are met. The tax authorities in the country of residence of the funds have certified that the entities are exempt from income tax in respect of income from investments and deposits in that country Accordingly, the interest and/or dividend income of the funds are excluded from withholding tax and is not assessable income.