Private ruling: Withholding Tax Exemption - Section 128B ITAA 1936
Date of advice: 13 December 2019
Published: February 2020
Ruling period: Year ending 30 June 2019 to 30 June 2022
Date scheme commenced: 1 July 2019

Ruling: Q1: Is the Fund excluded from liability to withholding tax on its interest, dividend and non-share dividend income derived in respect of its current investment under paragraph 128B(3)(jb) of the Income Tax Assessment Act 1936 ( ITAA 1936)? | A1: Yes.

Relevant facts and circumstances: The Fund The Fund is a resident of a Foreign State. The administrator of the Fund (the Administrator) is based in the Foreign State. The main functions of the Administrator are the administration of scheme benefits and the investment of the assets of the Fund. The primary objective of the Fund is to provide for the Fund members' pension and lump sum benefits on their retirement or for their dependants on death before or after retirement, on a defined benefits basis. There is limited discretion to vary these benefits. The Fund is a defined benefit scheme. The Fund does not provide benefits as a result of events other than old age retirement, disability or death. This includes circumstances such as the ability to withdraw contributions before retirement, the borrowing of contributions by members or hardship provisions. The period after which a member is entitled to benefits in the Fund is 2 years. If a member leaves the scheme before meeting the requirement, they have the option of taking a refund of contributions from the scheme or transfer out to another pension scheme. Management of Investments The Fund is financed by the contributions made by members and their employers as well as income earned from the investment of the Fund's monies. The Fund holds an investment in an Australian resident entity. The Australian investment is listed on the Australian Securities Exchange (ASX). The Fund will hold less than 10% of the total participation interests in the Australian entity. The Fund will hold less 10% of the total participation interests in the Australian entity in the circumstances detailed in paragraph 128B(3CC)(b) of the ITAA 1936. Neither the Fund, nor any related party, will have involvement in the day to day management of the business of the Australian entity. Neither the Fund, nor any related party, will have the right to appoint a director to the Board of Directors of the Australian entity. Neither the Fund, nor any related party, will have the right to representation on any investor representative or advisory committee (or similar) of the Australian entity. Neither the Fund, nor any related party, will have the ability to direct or influence the operation of the Australian entity outside of the ordinary rights conferred by the equity interest held. The Fund will only hold rights to vote in proportion to its equity interest in the Australian entity.

Relevant legislative provisions: Income Tax Assessment Act 1936 paragraph 128B(3)(jb)

Reasons for decision: 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: · 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. Further, from 1 July 2019, the extra requirements in subsection 128B(3CA) of the ITAA 1936 must also be met. Each of the requirements of paragraph 128B(3)(jb) will be considered below. The Fund is a non-resident The Fund is a resident of a Foreign State. Therefore, the Fund satisfies this requirement. 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. 1. An indefinitely continuing fund The term 'fund' is not defined in either the ITAA 1997 or the ITAA 1936. Therefore, it should be given its ordinary meaning subject to the context in which it appears and having regard to any relevant case law authorities. The Australian Oxford Dictionary, 2004, Oxford University Press, Melbourne defines the term 'fund' as; 1 a permanent stock of something ready to be drawn upon... 2 a stock of money, especially one set apart for a purpose. In Scott v. FC of T (No 2) (1966) 14 ATD 333; (1966) 10 AITR 290 (Scott), Windeyer J expressed the view that 'fund' in the context of 'superannuation fund' ordinarily meant 'money (or investments) set aside and invested, the surplus income therefrom being capitalised'. Windeyer J's views in Scott were cited with approval by Hill J in Walstern Pty Ltd v. Commissioner of Taxation (2003) 138 FCR 1; 2003 ATC 5076; (2003) 54 ATR 423 who stated that 'for present purposes, the point is the need for "money" or "other property" to constitute a fund'. In this case, the Fund is financed by the contributions made by members and their employers as well as income earned from the investment of the Fund's monies. As such, the Fund meets the requirements of being a 'fund'. The Fund is an indefinitely continuing fund and a provident, benefit, superannuation or retirement fund. There is no indication that there is an intention for the Fund to end at a definite point in time. Therefore, the Fund satisfies this requirement. 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). In this case, the primary objective of the Fund is to provide for the Fund members' pension and lump sum benefits on their retirement or for their dependants on death before or after retirement. The Fund provides benefits to members via a defined benefit scheme. Furthermore, the Fund does not provide benefits as a result of events other than old age retirement, disability or death. This includes circumstances such as the ability to withdraw contributions before retirement, the borrowing of contributions by members or hardship provisions. The Commissioner accepts these benefits align with the sole purpose of providing retirement benefits or benefits in other allowable contemplated contingencies. Therefore, the Fund satisfies this requirement. 3. Established in a foreign country The Fund was established in a foreign country. Therefore, the Fund satisfies this requirement. 4. Was established and maintained only to provide benefits for individuals who are not Australian residents The Fund was established and is maintained only to provide benefits to employees from entities who are members in the Fund. These entities and their employees reside in the Foreign State. Therefore, the Fund satisfies this requirement. 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: 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. The Administrator administers and exercises the CM&C of the Fund. In particular, the roles of Administrator are the administration of scheme benefits and the investment of the assets of the Fund. The Administrator is based in the Foreign State. Therefore, the Fund satisfies this requirement. 6. Subsection 118-520(2) The Fund has not and cannot deduct amounts under either the ITAA 1997 or the ITAA 1936 for amounts paid to it. The Fund has not been allowed a tax offset or a tax offset is not allowable for an amount that has been paid to it. Therefore, the Fund satisfies these requirements. 7. Conclusion 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. The Fund is exempt from income tax in the country in which the non-resident resides The Fund is exempt from income tax on its interest and dividend income in its country of residence. Therefore, the Fund satisfies this requirement. Subsection 128(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 . Each of these requirements are discussed in detail below. 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 the Australian entity. Further, the Fund would hold less than 10% of the total participation interests in the Australian entity in the circumstances detailed in paragraph 128B(3CC)(b) of the ITAA 1936. The Fund therefore satisfies the 'portfolio interest test' in respect of its current investment in the Australian entity (listed in the relevant facts and circumstances of this Ruling). 2. The Fund satisfies the 'influence test' Subsection 128(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 investment listed in the relevant facts and circumstances to this Ruling: · Neither the Fund, nor any related party of the Fund, has involvement in the day to day management of the business of the Australian entity. · Neither the Fund, nor any related party of the Fund, has the right to appoint a director to the Board of Directors of the Australian entity. · Neither the Fund, nor any related party, holds the right to representation on any investor representative or advisory committee (or similar) of the Australian entity. · Neither the Fund, nor any related party, has the ability to direct or influence the operation of the Australian entity outside of the ordinary rights conferred by the equity interest held. · The Fund only holds rights to vote in proportion to its equity interest in the Australian entity. Based upon the above, the Commissioner accepts that the Fund does not have influence of a kind described in subsection 128B(3CD) of the ITAA 1936. 3. Otherwise non-assessable non-exempt The 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 . | Detailed Reasoning - Conclusion: The Fund is excluded from withholding tax in relation to interest, dividend and non-share dividend income derived from its current Australian investment under paragraph 128B(3)(jb) of the ITAA 1936.

The Fund 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. | No contributions to the Fund are capable of being claimed as a tax offset or as a deduction under either the Income Tax Assessment Act 1997 (ITAA 1997) or the ITAA 1936. | Income of the Fund is not non-assessable non-exempt income because of: | Reasons for Decision: While these reasons are not part of the private ruling, we provide them to help you to understand how we reached our decision. | Question 1: Is the Fund excluded from liability to withholding tax on its interest, dividend and non-share dividend income derived in respect of its current investment under paragraph 128B(3)(jb) of the ITAA 1936? | The Fund satisfies the 'portfolio interest test'