Is the Trust Fund on behalf of the Pension Plans excluded from liability to withholding dividend income derived from its investments in Australian Companies in accordance with paragraph 28B(3)(jb) of the Income Tax Assessment Act 1936 (ITAA 1936)?
Yes This ruling applies for the following periods : 1 July 2019 to 30 June 2028 The scheme commences on: 1 July 2019
1. The Pension Plans were established in a country outside of Australia (Country A) to administer the payment of pension benefits of employees of the Company. 2. The incomes received by the Pension Plans include members' contributions and income from investments made on behalf of the Pension Plans and these are not used for any purpose other than providing pension benefits of employees and their beneficiaries and paying the reasonable expenses of administering the Pension Plans. 3. The Pension Plans do not provide benefits as a result of events other than old age retirement, disability or death. 4. The Pension Plans have processes in place if they are terminated. However, it is the intention of the Pension Plans to be maintained indefinitely. 5. A Trust Fund was established to provide for the investment of the assets of the Pension Plans. 6. A Pension and Investment Committee directs and administers the assets of the Pension Plans. 7. The Pension Plans are allocated their share of the income and realised gains of the Trust Fund and are able to redeem the value of its interest in the Trust Fund for cash.
8. The Trust Fund is an entity which is exempt from tax in Country A. Investment of the Trust Fund in Australian companies The Australian investments relevant to this Ruling comprise of ordinary shares in companies listed on the Australian Stock Exchange (ASX). The Trust Fund on behalf of the Pension Plans invests in Australia through the trustee and appointed custodians. The Trust Fund on behalf of the Pension Plans (a) Hold less than 10% of the total participation interests in the Australian companies and has never held more than a 10% participation interest. (b) Hold less than 10% of the total participation interests in the circumstances detailed in paragraph 128B(3CC)(b) of the ITAA 1936. Neither the Pension Plans, the Trust Fund nor any related party of these entities (c) Have involvement in the day-to-day management of the business of the Australian companies. (d) Hold any right to appoint a person to a board, committee or similar, either directly or indirectly, of the Australian companies. (e) Hold the right to representation on any investor representative or advisory committee (or similar) of the Australian companies.
(f) Have the ability to direct or influence the operation of any of the Australian companies outside of the ordinary rights conferred by the equity interest held. (g) Have entered into or received any side letters, arrangements or agreements. (h) Hold any veto rights on security holder votes. Other relevant facts 9. The Pensions Plans are an indefinitely continuing fund and a provident, benefit, superannuation or retirement fund. 10. The Trust Fund and Pension Plans are established in a foreign country and are maintained, only to provide benefits for individuals who are not Australian residents. 11. The central management and control of the Trust Fund and Pensions Plans are carried on outside Australia by entities none of whom is an Australian resident. 12. The Trust Fund and Pension Plans have not and cannot deduct amounts under either the Income Tax Assessment Act 1997 (ITAA 1997) or the ITAA 1936 for amounts paid to them. 13. The Trust Fund and Pension Plans have not been allowed a tax offset or a tax offset is not allowable for an amount that have been paid to them. 14. The income of the Trust Fund is not non-assessable non-exempt income of the Fund because of:
i. Subdivision 880-C of the ITAA 1997; or, ii. Division 880 of the Income Tax (Transitional Provisions) Act 1997
Income Tax Assessment Act 1936 paragraph 128B(3)(jb) Income Tax Assessment Act 1997 section 118-520 Income Tax Assessment Act 1936 subsection 128(3CA)
Summary The Trust Fund on behalf of the Pension Plans are excluded from liability to withholding tax on dividend income derived from its investments in accordance with paragraph 128B(3)(jb) of the ITAA 1936. Detailed reasoning Section 128B of the ITAA 1936 imposes liability to withholding tax on income derived by a non-resident that consists of dividend income (subsection 128B(1) of the ITAA 1936), interest income (subsection 128B(2) of the ITAA 1936) as well as other income prescribed in that section. 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.
These requirements of paragraph 128B(3)(jb) of the ITAA 1936 are considered below. Subparagraph 128B(3)(jb)(i) of the ITAA 1936 Are the Pension Plans non-resident? The Pension Plans are not residents of Australia for income tax purposes. The Pension Plans were established in Country A and their respective administrators are also based in Country A. Therefore, the Pension Plans satisfy this requirement. Superannuation fund for foreign residents The term 'superannuation fund for foreign residents' is defined in section 118-520 of the ITAA 1997 as follows: Meaning of superannuation fund for foreign residents (1) A fund is a superannuation fund for foreign residents at a time if: (a) at the 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 deducted under this Act; or (b) a tax offset has been allowed or is allowable for such an amount. Consequently, for the Trust Fund on behalf of the Pension Plans to be excluded from withholding tax on interest, dividend and / or non-share dividend income that it derives from its investment in Australian entities under paragraph 128B(3)(jb) of the ITAA 1936, it must be established that the Pension Plans: i. are indefinitely continuing funds ii. are provident, benefit, superannuation or retirement funds iii. were established in a foreign country iv. were established and maintained only to provide benefits for individuals who are not Australian residents v. have their central management and control carried on outside of Australia by entities none of whom are Australian residents vi. do not receive or have amounts set aside for them that have been or can be deducted under the ITAA 1936 or the ITAA 1997 vii. do not receive or have amounts set aside for them that give rise to a tax offset
viii. receive income that consists of interest, dividends or non-share dividends paid by a company that is an Australian resident, and ix. are exempt from income tax in the country in which the non-resident resides. These requirements are considered below. i. Indefinitely continuing funds Neither the ITAA 1936 or the ITAA 1997 provide guidance on the meaning of 'indefinitely continuing', however, the ordinary meanings of 'indefinitely' and 'continuing' involve little ambiguity or controversy. The Australian Oxford Dictionary defines the 'indefinitely' as '1. for an unlimited time...2. in an indefinite manner' and 'continuing' as '...persist in, maintain, nonstop'. 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 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. 3. ...money resources.
The general view is that an indefinitely continuing fund does not have to continue forever, but rather that the governing rules should not fix an express termination date. Although the governing documents of the Pension Plans and the Trust Fund set out the processes to be followed in case of termination of the Pension Plans and the Trust Fund, there is no express termination date in the governing documents or any indication of an intention for the Pension Plans or the Trust Fund to end at a definite point in time. Therefore, it is accepted that the Pension Plans and the Trust Fund satisfy the requirement of being an indefinitely continuing fund. ii. 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 1936 or the ITAA 1997. The phrase, however, has been subject to judicial consideration. In Scott v Commissioner of Taxation (No 2) (1966) 40 ALJR 265, Windeyer J stated 278:
There is no definition in the Act of a superannuation fund. The meaning of the term must therefore depend upon ordinary usage...I have come to the conclusion that there is no single attribute of a superannuation fund established for the benefit of employees except that it must be a fund bona fide devoted as its sole purpose to providing for employees who are participants money benefits (or benefits having a monetary value) upon their reaching a prescribed age. In Mahony v Commissioner of Taxation (1967) 41 ALJR 232, Kitto J stated at 232: ...All that need be recognized is that just as 'provident' and 'superannuation' both referred to the provision of a particular kind of 'benefit' - in the one case a provision against contemplated contingencies, and in the other case a provision, to arise on an employee's retirement or death or other cessation of employment, of a subvention for him or his estate or persons... In Cameron Brae Pty Limited v FCT (2007) 161 FCR 468, the Full Federal Court held that the relevant fund was a superannuation fund for the purposes of former section 82AAE of the ITAA 1936. Jessup J stated at 506:
... A proper characterisation of the fund should, in my view, depend upon the purposes for which the assets and moneys of the fund might have been used rather than upon the quality of the rights of individual members of the fund. If the fund could have been used only to achieve what might be described as a superannuation purpose, I would describe the fund as a "superannuation fund". ATO Interpretative Decision ATO ID 2009/67 Income Tax: Superannuation fund for foreign residents (ATO ID 2009/67) refers to these authorities and provides the following guidance on the meaning of the phrase: 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 relevant authorities therefore establish that in order 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 contemplated contingencies (such as death, disability or serious illness). The Pension Plans are defined benefit plans that apply to employees of the Company and provide retirement, disability, death and survivor benefits to members of the Pension Plans and their dependents. Members are eligible for a pension at the normal retirement age respective of the Pension Plans. In some circumstances, the early pension may be accessed before the participant reaches the normal retirement age, depending on their accumulated years of continuous service and their age.
There are no benefits provided by the Pension Plans to contributors and beneficiaries beyond those as prescribed above and the Commissioner accepts that the alternate circumstances of access to the funds, being incapacity, death, the transfer of funds to another retirement fund, and a return of contributions in very limited circumstances, align to the contemplated contingencies of a 'provident, benefit, superannuation or retirement fund' as outlined in the relevant judicial decisions and ATO ID 2009/67. The Trust Fund is responsible for managing assets and amounts transferred to it on behalf of the Pension Plans and all monies managed by the Trust Fund on behalf of the Pension Plans are amounts that are used solely for the purposes of administering and paying out benefits under the Pension Plans. Therefore, it can be concluded that the sole purpose of the Pension Plans are to provide retirement benefits or benefits in other allowable contemplated contingencies and as such will satisfy this requirement. iii. Established in a foreign country The Pension Plans and the Trust Fund were established in Country A.
Therefore, Pension Plans and the Trust Fund were established in a foreign country and this requirement is satisfied. iv. Was established and maintained only to provide benefits for individuals who are not Australian residents The Pension Plans were established in Country A to provide retirement, disability and death benefits to employees of the Company and any participating affiliates. These employees are not Australian residents. Therefore, the Pension Plans satisfy this requirement. v. Central management and control 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 Pension Plans and the Trust Fund were established in Country A, their respective administrators are located in Country A and carry out administration and control in Country A. Further, The Company's head office is located in Country A. The Trust 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 Pension Plans occurs in the Country A by entities that are not Australian residents. Therefore, the Pension Plans and the Trust Fund satisfy this requirement. vi.
Do not receive, or have amounts set aside for them, that have been or can be deducted under the ITAA 1936 or ITAA 1997 and no tax offset has been allowed or is allowable for such an amount. The Trust Fund has advised that no amounts received by the Trust Fund, or set aside for the Trust Fund, in connection with the Pension Plans have or can be deducted under the ITAA 1936 or ITAA 1997. Therefore, this requirement is satisfied. vii. Do not receive, or have amounts set aside for them, that give rise to a tax offset. The Trust Fund has advised that no amounts received by the Trust Fund, or set aside for the Trust Fund, in connection with the Pension Plans are amounts for which a tax offset has been allowed under the ITAA 1936 or ITAA 1997. Therefore, this requirement is satisfied. viii. Receives income that consists of interest, dividends or non-share dividends paid by a company that is an Australian resident In order to be excluded from withholding tax under paragraph 128B(3)(jb) of the ITAA 1936, the Pension Plans must derive the relevant interest and dividend income. Relevant to this analysis is subsection 128A(3) of the ITAA 1936 which provides:
For the purposes of this Division, a beneficiary who is presently entitled to a dividend, to interest or to a royalty included in the income of a trust estate shall be deemed to have derived income consisting of that dividend, interest or royalty at the time when he or she became so entitled. The Commissioner has accepted that subsection 128A(3) of the ITAA 1936 can apply to deem beneficiaries of non-resident trust estates to have derived the relevant income in limited circumstances. ATO Interpretative Decision ATO ID 2008/61 Withholding Tax Exemption: interest and dividends paid by an Australian resident and received by a Dutch Stichting as unitholder in an Irish Common Contractual Fund
(ATOID 2008/61)is an example of this. In this ATOID, an Irish CCF was found to be a trust for Australian income tax purposes. The terms of the deed states that income of the CCF accrued to unitholders as it arose. As such, the unitholder would have a present legal right to demand and receive payment of the income, and therefore was presently entitled to the dividend and interest income received by the CCF. The requirements in subsection 128A(3) were therefore satisfied, and the unitholder was deemed to have derived the income at the time when it became presently entitled. Being an entity entitled to be excluded from withholding tax under paragraph 128B(3)(jb) of the ITAA 1936, the unitholder was subsequently exempt from withholding tax. As such, the critical factor is to determine whether the Pension Plans are 'presently entitled' to the income of the Trust Fund. Present entitlement
The requirement in subsection 128A(3) of the ITAA 1936 of present entitlement to a share of the income of the trust estate refers to a present vested right to demand and receive payment of the whole or part of what has been received by the trustee as income and, retaining that character in the trustee's hands, is legally available to be distributed to those entitled to it as beneficiaries under the trusts. Having considered the circumstances of the arrangement between the Trustee and the Trust Fund and between the Trust Fund and the Pension Plans, the Commissioner accepts that the Pension Plans are presently entitled to the income as it arises to the Trust Fund. Therefore, the Pension Plans are deemed to have derived the relevant dividend income for the purposes of Division 11A of the ITAA 1936. As such, the Pension Plans are considered to have derived dividend income for the purposes of determining a withholding tax liability. Subparagraph 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 and to which Pension Plans are presently entitled.
The Trust Fund has provided a list of its Australian Investments as at 31 December 2022 (Appendix 1) relevant to the Pension Plans. This list identifies the Trust Fund's Australian investments are in two Australian publicly listed entities and their income consists of dividends only. Therefore, this requirement is satisfied. ix. Is exempt from income tax in the country in which it resides The Trust Fund and the Pension Plans are exempt from income tax in Country A. Therefore, this requirement is satisfied. Conclusion on section 118-520 of the ITAA 1997 As all the above requirements are satisfied, the Trust Fund and Pension Plans meet the requirements of being a superannuation fund for foreign residents as defined by section 118-520 of the ITAA 1997. 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 Trust Fund on behalf of the Pension Plans must satisfy the 'portfolio interest test' in relation to the test entity (subsection 128B(3CC) of the ITAA 1936) The Trust Fund on behalf the Pension Plans 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 Trust Fund because of: a) Subdivision 880-C of the ITAA 1997, or b) Division 880 of the Income Tax (Transitional Provisions) Act 1997 . These requirements are considered below. i. 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. Subsection 128B(3CB) defines the test entity to be either the entity that paid the interest, dividends or non-share dividends or, if subsection 128A(3) of the ITAA 1936 applies in relation to a resident trust estate, that trust estate. Under the arrangement covered by this Ruling, the relevant 'test entities' are Australian companies. Subsection 995-1(1) of the ITAA 1997 defines 'total participation interest' to have the meaning given by section 960-180 of the ITAA 1997, which states: An entity's total participation interest at a particular time in another entity is the sum of: (a) the entity's *direct participation interest in the other entity at that time; and (b) the entity's *indirect participation interest in the other entity at that time.
Section 960-180 of the ITAA 1997 provides that an entity's total participation interest at a particular time in another entity is the sum of the direct participation interest and the indirect participation interest. As the Trust Fund on behalf of the Pension Plans holds the investments in Australian companies directly, there are no indirect participation interests to consider. Section 960-190 of the ITAA 1997 provides that if the other entity is a company, then the direct participation interest that the first entity holds in the other entity is the direct control interest (within the meaning of section 350 of the ITAA 1936) that the first entity holds in the other entity. Subsection 350(1) of the ITAA 1936 provides that an entity holds a direct control interest in a company at a particular time equal to the percentage that the entity holds, or is entitled to acquire, at that time of: the total paid-up share capital of the company the total rights of shareholders to vote, or participate in any decision-making, concerning any of the following: making distributions of capital or profit of the company to its shareholders the constituent document of the company
any variation of the share capital of the company, or the total rights to distributions of capital or profits of the company to its shareholders on winding-up, or otherwise than on winding-up. The Australian investments owned by the Trust Fund on behalf of the Pension Plans consist of shares in ASX listed companies. The shareholding represents less than 1% of the total shares issued by the companies. As such, the Trust Fund on behalf of the Pension Plans, holds less than 10% of the total participation interest in the Australian companies in the circumstances contemplated in subsection 128B(3CC) of the ITAA 1936. Therefore, this requirement is satisfied. ii. 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 foreign superannuation 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 foreign superannuation 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 foreign superannuation fund. In respect of the investments, neither the Trust Fund nor any related party of these entities: have involvement in the day to day management of the business of the Australian companies. hold any right to appoint a person to a board, committee or similar, either directly or indirectly, of the Australian companies. hold the right to representation on any investor representative or advisory committee (or similar) of the Australian companies. Have the ability to direct or influence the operation of any of the Australian companies outside of the ordinary rights conferred by the equity interest held.
have entered into or received any side letters, arrangements or agreements. hold any veto rights on security holder votes. Based upon the above, the Commissioner accepts that neither the Trust Fund nor any related party of these entities have influence of a kind described in subsection 128B(3CD) of the ITAA 1936. iii. Otherwise non-assessable non-exempt The income received by the Trust Fund on behalf of the Pension Plans 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 . The Trust Fund on behalf of the Pension Plans therefore satisfy this condition in respect of its current investments. Conclusion Having regard to the requirements of paragraph 128B(3)(jb) of the ITAA 1936, the Trust Fund on behalf of the Pension Plans are excluded from withholding tax in relation to dividend income derived from its investments.