TAX UPDATE AUSTRALIAN AUGUST 2012 MANAGED INVESTMENT TRUST (MIT) WITHHOLDING TAX CONCESSION

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1 AUGUST 2012 AUSTRALIAN TAX UPDATE MANAGED INVESTMENT TRUST (MIT) WITHHOLDING TAX CONCESSION BACKGROUND, OVERVIEW AND CURRENT STATUS OF MIT CONCESSION AND RELATED REFORMS The MIT withholding tax concession was originally announced by the Australian Government (Government) in its Federal Budget of 13 May It subsequently introduced legislation on 4 June 2008 which provided a significant reduction in withholding tax (from 30% progressively to 7.5% over three years) on certain distributions (predominantly rental income and certain capital gains) from Australian MITs to specified foreign investors. The 7.5% rate applied to distributions made from 1 July 2010 to 30 June In the Federal Budget of 8 May 2012, the Government announced that the MIT withholding rate would double from 7.5% to 15% for fund payments made in relation to income years commencing from 1 July This change has been legislated. However, the Government also proposed that from 1 July 2012, MITs that only (solely) hold newly constructed energy efficient commercial buildings would be eligible for a 10% withholding tax rate instead of 15%. We understand that this 10% rate will be available in relation to office buildings that have obtained a 5-star Green Star rating or a predicted 5.5 star National Australian Built Energy Ratings Scheme (NABERS) rating, and retail centres and non-residential accommodation that meet equivalent standards. This new regime would apply where construction of the building commences after 1 July The Department of Climate Change and Energy Efficiency will administer the eligibility requirements and monitor investment outcomes. The eligibility criteria will be reviewed after three years to ensure they are selecting projects that are above the average level of energy efficiency. This 10% rate has not yet been legislated. The Government has initiated industry consultation about the design of this scheme.

2 We attach Appendix A, which summarises the various MIT withholding tax concession rates as they apply to MITs. Finally, the Government has recently (on 30 July 2012) announced the delayed commencement of the broader reform of trust income taxation and the new tax system for MIT's until 1 July However, it will commence broad consultation on these proposed reforms, including the recently released discussion paper on "fixed trusts", during the second half of MIT WITHHOLDING TAX CONCESSION The MIT withholding tax concession is available where the following requirements have been satisfied pursuant to Sub-division 12-H of Schedule 1 to the Tax Administration Act 1953 (Cth): The trust must be a MIT The distribution must be a "fund payment" The recipient of the distribution must be an entity with an address outside Australia The address of the recipient must be an "information exchange country". These requirements are discussed in further detail below. MIT The definition of a MIT was expanded in 2010 to include certain unregistered wholesale funds and Government-owned funds. A trust can only obtain the MIT withholding tax concession where it satisfies all the following requirements. For ease of reference, we have summarised these requirements in Appendix B. Australian resident trust The trust must have either an Australian resident trustee or the central management and control of the trust must be in Australia. Not a trading trust In the case of a unit trust, the trust must not be a trading trust. For any other trust, the trust must not carry on a trading business or control/be able to control the affairs or operations of another person carrying on a trading business. That is, the trust must undertake passive investments (for example, holding land for rental income) rather than active business investments or operations. Australian investment management activities A substantial proportion of the investment management activities of Australian assets (including taxable Australian property) must be carried out in Australia. Managed Investment Scheme (MIS) The trust must be a MIS as defined in the Corporations Act 2001 (Cth) (Corporations Act). Generally, a MIS is where members pool money to produce financial benefits and the members do not have day-to-day control of the scheme. Widely held This requirement varies depending on whether the fund is a registered retail fund, registered wholesale fund or unregistered wholesale fund and these are discussed below. Trusts that are in a start-up or wind-down phase will be deemed to have met the widely held requirements in certain circumstances. Registered retail fund A registered retail fund will be widely held where one of the following is satisfied: Units in the fund are listed on an approved Australian stock exchange Fund has at least 50 members tracing through eligible entities (refer to Appendix C for a list of eligible entities) is allowed in calculating the number of members. In particular, the interest in the MIT held by an eligible entity is multiplied by 50 and rounded up to give the number of members in respect of the interest held by the eligible entity Fund satisfies the "25/60% rule" that is, an eligible entity (refer to Appendix C for a list of eligible entities) has an interest of more than 25% in the fund at the time the first fund payment is made and at no time does an entity (other than eligible entities) have an interest of more than 60%. Registered wholesale fund A registered wholesale fund will be widely held where one of the following is satisfied: Fund has at least 25 members tracing through eligible entities (refer to Appendix C for a list of eligible entities) is allowed in calculating the number of members. Please refer to the discussion above on registered retail funds

3 Fund satisfies the "25/60% rule" refer to the discussion above on registered retail funds. Unregistered wholesale fund An unregistered wholesale fund will be widely held where it has at least 25 members. Tracing through eligible entities (refer to Appendix C for a list of eligible entities) is allowed in calculating the number of members. Please refer to the discussion above on registered retail funds. Not closely held A foreign resident individual cannot have an interest in the MIT of 10% or more and the trust cannot be closely held. This closely held requirement varies depending on whether the fund is a retail or wholesale fund. In the case of a retail fund, 20 or fewer persons cannot have a total interest in the fund of 75% or more. In the case of a wholesale fund, 10 or fewer persons cannot have a total interest in the fund of 75% or more. Licensing requirements A wholesale fund must be operated or managed by a financial services licensee or by an authorised representative of such licensee. Similar licensing requirements are imposed on retail funds by the Corporations Act. FUND PAYMENT The MIT withholding tax concession applies only to fund payments, that is distributions primarily of rental income and capital gains from taxable Australian property by Australian MITs. The nature of the underlying income of Australian trusts is preserved on distribution from these trusts, including to non-residents. These MIT withholding tax rules will not apply to dividend, interest, royalty income and capital gains from non-taxable Australian property. Therefore, only distributions of Australian sourced net income of these trusts to non-residents will benefit from the new rules. A payment is not a fund payment in relation to an income year unless it is paid during the income year or within three months of the end of that income year. of Australia or where the MIT is authorised to make the payment to a place outside Australia. INFORMATION EXCHANGE COUNTRY In addition, the MIT withholding tax concession is only available for investors resident in a country with which Australia has an effective Exchange of Information (EOI) arrangement on tax matters with Australia. These countries are listed in Appendix D. Otherwise, fund payments for foreign investors are subject to the 30% withholding tax rate. CAPITAL ACCOUNT ELECTION In addition to the MIT withholding tax concession, the Government introduced a capital account election for MITs. This election allows a MIT to hold eligible assets (such as, shares in a company, units in a unit trust and land, including an interest in land) on capital account resulting in income from those assets that would otherwise be on revenue account, being subject on disposal to the capital gains tax regime. Therefore, investors may be concessionally taxed on these gains due to the capital gains discount that is available to individuals and trusts (up to a discount of 50%) and complying superannuation funds (up to a discount of 33 1 / 3 %) where the asset has been held for more than 12 months. RECIPIENT ENTITY The reduced MIT withholding tax rate is only available where the investor has an address outside

4 APPENDIX A Relevant Period Applicable MIT withholding tax concession rate Pre 1 July % 1 July June % 1 July June % 1 July June % 1 July onwards 15% or 10% in respect of newly constructed energy efficient commercial buildings APPENDIX B Summarised requirements for a MIT - for purposes of the MIT withholding tax concession.

5 APPENDIX C List of Eligible Entities Life insurance company registered under section 21 of the Life Insurance Act 1995 (Cth). Complying superannuation funds, a complying approved deposit fund or a foreign superannuation fund, being a fund that has at least 50 members. Pooled superannuation trust that has at least one member that is a complying superannuation fund that has at least 50 members. MITs. An entity recognised under a foreign law as being used for collective investment by means of pooling the contributions of at least 50 members as consideration to acquire rights to benefits produced by the entity, if the members of the entity do not have day-to-day control over the operation of the entity. Certain Government-owned entities. Certain foreign entities established for the principal purpose of funding pensions (including disability and similar benefits). Certain foreign government-owned investment entities.

6 APPENDIX D Countries (currently 60) with which Australia has an effective EOI arrangement on taxation matters From 1 July 2008 Norway From 1 July 2011 Argentina Bermuda Canada China Czech Republic Denmark Fiji Finland France Germany Hungary India Indonesia Ireland Italy Japan Kiribati Malta Mexico Netherlands Netherlands Antilles New Zealand Papua New Guinea Poland Romania Russia Slovakia South Africa Spain Sri Lanka Sweden Taipei Thailand United Kingdom United States of America Vietnam From 1 July 2010 Antigua and Barbuda British Virgin Islands Isle of Man Jersey From 1 January 2011 Gibraltar Guernsey Belize Cayman Islands The Commonwealth of the Bahamas Principality of Monaco The Republic of San Marino The Republic of Singapore Saint Kitts and Nevis Saint Vincent and the Grenadines From 1 January 2012 Anguilla Aruba Belgium Malaysia Turks and Caicos Islands From 1 July 2012 Cook Islands Macau Mauritius Republic of Korea

7 MORE INFORMATION Contact your nearest DLA Piper office: SYDNEY Jock McCormack T jock.mccormack@dlapiper.com Peter Charteris T peter.charteris@dlapiper.com Louise Boyce Special Counsel T louise.boyce@dlapiper.com Anshu Maharaj Senior Associate T anshu.maharaj@dlapiper.com Eddie Ahn Senior Associate T eddie.ahn@dlapiper.com MELBOURNE James Newnham T james.newnham@dlapiper.com PERTH Brian Pass T brian.pass@dlapiper.com BRISBANE Paul Baxter T paul.baxter@dlapiper.com Peter Burden Special Counsel T peter.burden@dlapiper.com CANBERRA Caroline Atkins T caroline.atkins@dlapiper.com AUTHORS AUSTRALIA Jock McCormack T jock.mccormack@dlapiper.com Dr Gerry Bean T gerry.bean@dlapiper.com Anshu Maharaj Senior Associate T anshu.maharaj@dlapiper.com DLA Piper is a global law firm operating through various separate and distinct legal entities. For further information, please refer to Copyright 2012 DLA Piper. All rights reserved. This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.