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Is the trustee of a superannuation fund exempt from liability to withholding tax on its interest and/or dividend income derived from Australia under paragraph 128B(3)(a) of the Income Tax Assessment Act 1936 (ITAA 1936)?

The trustee of the superannuation fund is exempt from liability to withholding tax under paragraph 128B(3)(a) of the ITAA 1936 on its interest and/or dividend income derived from Australian sources.

The taxpayer superannuation fund, is a 'foreign superannuation fund' in terms of subsection 6(1) of the ITAA 1936 and the trustee is exempt from income tax on interest and/or dividend income derived from Australia by the superannuation fund under paragraph 23(jb) of the ITAA 1936.

The taxpayer superannuation fund is a non-resident and is exempt from income tax in the country in which it is resident. A certificate issued within the last three years by the taxing authority in the country of residence of the fund provided evidence that the fund is exempt from income tax in that country.

The trustee of the superannuation fund is exempt from liability to withholding tax on its interest and/or dividend income derived from Australia under paragraph 128B(3)(a) of the ITAA 1936. This paragraph exempts interest and/or dividend income received by a non-resident from withholding tax where: (i) that income is exempt from income tax because of paragraph 23(jb) of the ITAA36; and (ii) exempt from income tax in the country in which the non-resident resides.

The effect of paragraph 23(jb) combined with the subsection 6(1) definition of 'foreign superannuation fund' as well as paragraph 128B(3)(a) means that a foreign superannuation fund which has no connection with Australia other than by virtue of some or all of its funds being invested in Australian interest and/or dividend bearing investments is excluded not only from the ordinary provisions of the ITAA 1936 relating to the taxation of superannuation funds but also - provided that investment income is also exempt in its home country - from withholding tax on interest and dividends.