No. S 6
Income Tax Act
(CHAPTER 134)
Income Tax
(Exemption of Income of
Non-residents Arising from Funds
Managed by Fund Manager in Singapore)
Regulations 2010
In exercise of the powers conferred by section 13CA of the Income Tax Act, the Minister for Finance hereby makes the following Regulations:
Citation and commencement
1.—(1)  These Regulations may be cited as the Income Tax (Exemption of Income of Non-residents Arising from Funds Managed by Fund Manager in Singapore) Regulations 2010 and shall be deemed to have come into operation on 1st September 2007.
(2)  No liability to pay any penalty under section 13CA of the Act shall arise in respect of any exemption from tax prior to 7th January 2010.
Definitions
2.—(1)  In these Regulations —
“approved start-up fund manager” means a start-up fund manager approved under paragraph (4);
“bona fide entity” means an entity that is not a non-bona fide entity;
“commodity derivatives” means derivatives, whether traded over-the-counter or on an exchange, the payoffs of which are linked in whole to the payoffs or performance of the underlying commodity;
“compensatory payments” has the same meaning as in section 10N(12) of the Act;
“designated investments” means —
(a)stocks and shares denominated in any foreign currency of companies which are neither incorporated in Singapore nor resident in Singapore, excluding stocks and shares of companies incorporated in Malaysia which are listed on the Singapore Exchange or on the Kuala Lumpur Stock Exchange;
(b)securities (other than stocks and shares) denominated in any foreign currency (including bonds, notes, certificates of deposit and treasury bills) issued by foreign governments, foreign banks outside Singapore and companies which are neither incorporated in Singapore nor resident in Singapore;
(c)futures contracts held in any futures exchange;
(d)any immovable property situated outside Singapore;
(e)certificates of deposit, notes and bonds issued by Asian Currency Units in Singapore;
(f)Asian Dollar Bonds approved under section 13(1)(v) of the Act;
(g)deposits in Singapore with any approved bank as defined in section 13(16) of the Act;
(h)foreign currency deposits with financial institutions outside Singapore;
(i)stocks, shares, bonds and other securities listed on the Singapore Exchange or on the Kuala Lumpur Stock Exchange and other stocks, shares, bonds and securities issued by companies which are incorporated in Singapore and resident in Singapore;
(j)Singapore Government securities;
(k)foreign exchange transactions;
(l)interest rate or currency contracts on a forward basis, interest rate or currency options, interest rate or currency swaps, and swaps, forwards and option contracts relating to any designated investment or financial index, with —
(i)a financial sector incentive company which is —
(A)a bank licensed under the Banking Act (Cap. 19);
(B)a merchant bank approved under section 28 of the Monetary Authority of Singapore Act (Cap. 186); or
(C)a holder of a capital markets services licence under the Securities and Futures Act (Cap. 289) to deal in securities or a company exempted under that Act from holding such a licence;
(ii)a person who is neither resident in Singapore nor a permanent establishment in Singapore; or
(iii)a branch office outside Singapore of a company resident in Singapore;
(m)units in any unit trust which invests wholly in designated investments;
(n)qualifying debt securities that are discount securities issued during the period from 17th February 2006 to 31st December 2013 (both dates inclusive);
(o)securities (including bonds, notes, certificates of deposits and treasury bills, but excluding stocks and shares) issued by supranational bodies;
(p)loans that are —
(i)granted by the prescribed person to any company incorporated outside Singapore which is neither resident in Singapore nor a permanent establishment in Singapore, where no interest, commission, fee or other payment in respect of the loan is deductible against any income of that company accruing in or derived from Singapore; or
(ii)granted by a person other than the prescribed person but traded by the prescribed person;
(q)commodity derivatives; and
(r)physical commodities if —
(i)the trading of those physical commodities by the prescribed person in the basis period for any year of assessment is done in connection with and is incidental to its trading of commodity derivatives (referred to in this paragraph as related commodity derivatives) in that basis period; and
(ii)the trade volume of those physical commodities traded by the prescribed person in that basis period does not exceed 15% of the total trade volume of those physical commodities and related commodity derivatives traded by the prescribed person in that basis period;
“designated person” means —
(a)the Government of Singapore Investment Corporation Pte. Ltd.;
(b)the Monetary Authority of Singapore; or
(c)any company which is wholly owned, directly or indirectly, by the Minister (in his capacity as a corporation established under the Minister for Finance (Incorporation) Act (Cap. 183)) and which is approved by the Minister or such person as he may appoint;
“financial sector incentive company” has the same meaning as in section 43Q of the Act;
“prescribed person”  —
(a)in relation to an individual, means an individual who is neither a Singapore citizen nor resident in Singapore, and who is the beneficial owner of the funds managed by any fund manager in Singapore;
(b)in relation to a company, means a company which, at all times during the basis period for the year of assessment —
(i)is not resident in Singapore;
(ii)does not have a permanent establishment in Singapore (other than a fund manager);
(iii)does not carry on a business in Singapore;
(iv)has, in aggregate, less than 100% of the value of its issued securities beneficially owned (directly or indirectly) by Singapore persons; and
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(v)is not a company the income of which is derived from investments which have been transferred (other than by way of a sale on market terms and conditions) from a person carrying on a business in Singapore where the income derived by that person from those investments was not, or would not have been if not for their transfer, exempt from tax;
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(c)in relation to a trustee of a trust fund, means a trustee who, at all times during the basis period for the year of assessment —
(i)is not a resident in Singapore, a Singapore citizen or a permanent establishment in Singapore;
(ii)does not have a permanent establishment in Singapore (other than a fund manager);
(iii)does not carry on business in Singapore; and
(iv)is not a trustee the income of which is derived from investments which have been transferred to him in his capacity as a trustee of that trust fund (other than by way of a sale on market terms and conditions) from a person carrying on a business in Singapore where the income derived by that person from those investments was not, or would not have been if not for their transfer, exempt from tax,
and whose trust fund is, at all times during that basis period for the year of assessment, a trust fund in which the aggregate value of that fund held beneficially (directly or indirectly) by Singapore persons is less than 100%;
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“qualifying debt securities” has the same meaning as in section 13(16) of the Act;
“securities lending or repurchase arrangement” has the same meaning as in section 10N(12) of the Act;
“Singapore person”, in relation to paragraph (b) or (c) of the definition of “prescribed person”, means a person who is a Singapore citizen, resident in Singapore or permanent establishment in Singapore, but does not include —
(a)a company which is approved under section 13R of the Act and which, at all times during the basis period for the year of assessment for which the income of a prescribed person is exempt from tax under section 13CA of the Act —
(i)beneficially owns directly, 100% of the total value of all issued securities of the prescribed person or the total value of the trust fund for which the prescribed person is the trustee, as the case may be; and
(ii)satisfies the conditions in regulation 3(2) of the Income Tax (Exemption of Income of Approved Companies Arising from Funds Managed by Fund Manager in Singapore) Regulations 2010 (G.N. No. S 8/2010);
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(b)a designated person;
“specified income” means —
(a)interest and dividends in respect of designated investments derived from outside Singapore that are received in Singapore;
(b)interest derived from deposits with and certificates of deposit issued by any approved bank as defined in section 13(16) of the Act and from Asian Dollar Bonds approved under section 13(1)(v) of the Act;
(c)gains or profits realised from the sale of any designated investments;
(d)gains or profits arising from transactions referred to in paragraphs (c), (k), (l), (p), (q) and (r) of the definition of “designated investments”;
(e)fees and compensatory payments derived from securities lending or repurchase arrangements with —
(i)a person who is neither a resident of nor a permanent establishment in Singapore;
(ii)the Monetary Authority of Singapore;
(iii)a bank licensed under the Banking Act (Cap. 19);
(iv)a merchant bank approved under section 28 of the Monetary Authority of Singapore Act (Cap. 186);
(v)a finance company licensed under the Finance Companies Act (Cap. 108);
(vi)a holder of a capital markets services licence who is licensed to carry on business in the following regulated activities under the Securities and Futures Act (Cap. 289) (or a company exempted under that Act from holding such a licence):
(A)dealing in securities (other than any person licensed under the Financial Advisers Act (Cap. 110));
(B)fund management;
(C)securities financing; or
(D)providing custodial services for securities;
(vii)a collective investment scheme or closed-end fund as defined in the Securities and Futures Act that is constituted as a corporation;
(viii)the Central Depository (Pte) Limited;
(ix)an insurer registered or regulated under the Insurance Act (Cap. 142) or exempted under that Act from being registered or regulated; or
(x)a trust company registered under the Trust Companies Act (Cap. 336);
(f)rents and any other income derived from any immovable property situated outside Singapore that are received in Singapore;
(g)discounts derived from outside Singapore that are received in Singapore;
(h)discounts from qualifying debt securities which are issued during the period from 17th February 2006 to 31st December 2013;
(i)interest derived from qualifying debt securities;
(j)distributions from foreign unit trusts derived from outside Singapore that are received in Singapore; and
(k)prepayment fee, redemption premium and break cost from qualifying debt securities issued during the period from 15th February 2007 to 31st December 2013;
“unit” means a right or interest (whether described as a unit, a sub-unit or otherwise) which may be acquired under a unit trust;
“unit trust” means any trust established for the purpose, or having the effect, of providing facilities for the participation by persons as beneficiaries under a trust, in profits or income arising from the acquisition, management or disposal of securities or any other property.
(2)  The requirement in paragraph (b)(iv) of the definition of “prescribed person” in paragraph (1) relating to beneficial ownership of issued securities of a company does not apply to a fund constituted as a company and which is not resident in Singapore, for a period of 12 months from the date of its incorporation if —
(a)the company is incorporated at any time between 18th February 2005 and 17th February 2010 (both dates inclusive);
(b)the date of its incorporation is stated in its charter, statute or memorandum and articles or other instrument constituting it or defining its constitution;
(c)the company was incorporated by a fund manager who was an approved start-up fund manager at the time of incorporation; and
(d)the company is not incorporated with the avoidance or reduction of tax chargeable under the Act as its main purpose or one of its main purposes.
(3)  The requirement in paragraph (c) of the definition of “prescribed person” in paragraph (1) relating to beneficial holding of the value of a trust fund does not apply to a trust fund, for a period of 12 months from the date of its constitution if —
(a)the fund is constituted at any time between 18th February 2005 and 17th February 2010 (both dates inclusive);
(b)the date of its constitution is stated in the relevant trust instrument;
(c)it was constituted by a fund manager who was an approved start-up fund manager at the time of constitution; and
(d)it is not constituted with the avoidance or reduction of tax chargeable under the Act as its main purpose or one of its main purposes.
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(4)  For the purpose of paragraphs (2) and (3), the Minister or such persons as he may appoint may approve a fund manager as an approved start-up fund manager, and such approval shall be for a period not exceeding 3 years.
(5)  For the purposes of section 13CA of the Act and these Regulations, issued securities include —
(a)any right under a contract for differences, or under any other contract the purpose or pretended purpose of which is to secure a profit or avoid a loss by reference to fluctuations, in —
(i)the value or price of issued debentures, stocks or shares;
(ii)the value or price of any group of any such debentures, stocks or shares; or
(iii)an index of any such debentures, stocks or shares; and
(b)derivatives of a buy-sell nature for funding purpose,
but does not include —
(A)futures contracts which are traded on a futures market;
(B)bills of exchange;
(C)promissory notes; or
(D)certificates of deposit issued by a bank or finance company.
(6)  Any reference in section 13CA of the Act and these Regulations to the value of issued securities of a company of the type described in paragraph (5) is a reference to the value of those securities —
(a)at the time of their issue by the company; or
(b)in the case of derivatives of a buy-sell nature, at the time of their buy-sell transaction.
(7)  For the purposes of section 13CA of the Act and these Regulations, “prescribed percentage” means —
(a)where the prescribed person or the trust fund for which the prescribed person is the trustee has less than 10 relevant owners or relevant beneficiaries — 30%; or
(b)where the prescribed person or the trust fund for which the prescribed person is the trustee has at least 10 relevant owners or relevant beneficiaries — 50%.
Exemption from tax of income under section 13CA of Act
3.  Subject to regulation 4, there shall be exempt from tax the specified income derived by a prescribed person from funds managed in Singapore by any fund manager in respect of designated investments.
No deduction in respect of loss arising from designated investments
4.  Notwithstanding anything in these Regulations, no deduction shall be allowed under the Act to —
(a)any prescribed person in respect of any loss arising from —
(i)the sale of any designated investments if any gains or profits realised from the sale of such investments would have been exempt from tax under regulation 3; and
(ii)any transaction, other than those falling under sub-paragraph (i), in respect of any designated investments if any gains or profits from such transaction would have been exempt from tax under regulation 3;
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(b)any relevant owner or relevant beneficiary, as the case may be, of any prescribed person or the trust fund for which the prescribed person is the trustee in respect of any loss arising from sales or transactions of the types described in paragraph (a) which are otherwise attributable to such relevant owner or relevant beneficiary.
Persons exempted from application of certain provisions
5.—(1)  Section 13CA(2) or (4) of the Act shall not apply to a relevant owner or relevant beneficiary, as the case may be, who is —
(a)an individual;
(b)a bona fide entity not resident in Singapore who does not have a permanent establishment in Singapore (other than a fund manager) and does not carry on a business in Singapore;
(c)a bona fide entity not resident in Singapore (excluding a permanent establishment in Singapore) who carries on an operation in Singapore through a permanent establishment in Singapore where the funds used by the entity to invest directly or indirectly in the prescribed person or the trust fund for which the prescribed person is the trustee are not obtained from such operation;
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(d)a designated person; or
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(e)an approved company under section 13R of the Act which, at all times during the basis period for the year of assessment for which the income of a prescribed person is exempt from tax under section 13CA of the Act —
(i)beneficially owns directly, 100% of the total value of all issued securities of the prescribed person or the total value of the trust fund for which the prescribed person is the trustee, as the case may be; and
(ii)satisfies the conditions in regulation 3(2) of the Income Tax (Exemption of Income of Approved Companies Arising from Funds Managed by Fund Manager in Singapore) Regulations 2010 (G.N. No. S 8/2010).
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(2)  Section 13CA(6) of the Act shall not apply to a liable person referred to in that provision if the person is —
(a)an individual;
(b)a bona fide entity not resident in Singapore who does not have a permanent establishment in Singapore (other than a fund manager) and does not carry on a business in Singapore;
(c)a bona fide entity not resident in Singapore (excluding a permanent establishment in Singapore) who carries on an operation in Singapore through a permanent establishment in Singapore where the funds used by the entity to invest directly or indirectly in the prescribed person or the trust fund for which the prescribed person is the trustee are not obtained from such operation;
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(d)a designated person; or
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(e)an approved company under section 13R of the Act which, at all times during the basis period for the year of assessment for which the income of a prescribed person is exempt from tax under section 13CA of the Act —
(i)beneficially owns directly, 100% of the total value of all issued securities of the prescribed person or the total value of the trust fund for which the prescribed person is the trustee, as the case may be; and
(ii)satisfies the conditions in regulation 3(2) of the Income Tax (Exemption of Income of Approved Companies Arising from Funds Managed by Fund Manager in Singapore) Regulations 2010.
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(3)  For the purposes of section 13CA(2), (4) and (6) of the Act and regulation 2(7), where the issued securities, value of trust fund or equity interest, as the case may be, is held by a trustee of a trust, the relevant owner, relevant beneficiary or person shall be the beneficiary of the trust administered by the trustee.
(4)  For the purposes of paragraph (3), if a person is a beneficiary of a trust (referred to in this paragraph as a first level trust entity) whose trustee holds (including by virtue of one or more applications of this paragraph), in its capacity as trustee of the first level trust entity, interests of another trust (referred to in this paragraph as a second level trust entity), then the person is taken to beneficially own interests of the second level trust entity; and the percentage which the value of those interests bears to the total value of all interests of the second level trust entity shall be computed in accordance with the following formula:
where A is the percentage which the value of the interest of the first level trust entity beneficially owned by the person bears to the total value of all interests of the first level trust entity; and
B is the percentage which the value of the interest of the second level trust entity beneficially owned by the trustee of the first level trust entity bears to the total value of all interests of the second level trust entity.
Definition of associate
6.—(1)  For the purposes of section 13CA of the Act and subject to paragraph (2), a person (“P1”) is an associate of another person (“P2”), where P1 or P2 are neither designated persons nor individuals —
(a)where P1 is a company and —
(i)where P2 is another company —
(A)P1 beneficially owns, directly or indirectly, at least 25% of the total value of the issued securities of P2;
(B)P2 beneficially owns, directly or indirectly, at least 25% of the total value of the issued securities of P1; or
(C)a third person beneficially owns, directly or indirectly, at least 25% of the total value of the issued securities of P1 and at least 25% of the total value of the issued securities of P2;
(ii)where P2 is a company and a beneficiary of a trust —
(A)P1 beneficially owns, directly or indirectly, at least 25% of the total value of the issued securities of P2;
(B)P2 beneficially owns, directly or indirectly, at least 25% of the total value of the issued securities of P1; or
(C)a third person beneficially owns, directly or indirectly, at least 25% of the total value of the issued securities of P1 and at least 25% of the total value of the issued securities of P2; and
(b)where P1 is a company and is a beneficiary of a trust (T1) and where P2 is a company and is a beneficiary of another trust (T2) —
(i)P1 beneficially owns, directly or indirectly, at least 25% of the total value of the issued securities of P2;
(ii)P2 beneficially owns, directly or indirectly, at least 25% of the total value of the issued securities of P1; or
(iii)a third person beneficially owns, directly or indirectly, at least 25% of the total value of the issued securities of P1 and at least 25% of the total value of the issued securities of P2.
(2)  Notwithstanding anything in paragraph (1), P1 is not an associate of P2 in the following cases:
(a)where —
(i)either P1 or P2 is an entity listed on an exchange in Singapore or elsewhere;
(ii)P1 does not beneficially own, directly or indirectly, at least 25% of the total value of the issued securities of P2; and
(iii)P2 does not beneficially own, directly or indirectly, at least 25% of the total value of the issued securities of P1; or
(b)where —
(i)no third person (other than an individual or a designated person) beneficially owns, directly or indirectly, at least 25% of the total value of issued securities of P1 and at least 25% of the total value of issued securities of P2; and
(ii)at least 25% of the total value of the issued securities of P1 and at least 25% of the total value of the issued securities of P2 are owned either directly by an individual or a designated person, or indirectly through a nominee company or a trust fund by an individual or a designated person.
Annual statement and annual declaration
7.—(1)  Where a prescribed person derives in any basis period any income exempt from tax under regulation 3, any fund manager of the prescribed person shall issue to every relevant owner or relevant beneficiary, as the case may be, of the prescribed person or the trust fund for which the prescribed person is the trustee a statement for the basis period.
(2)  The statement issued under paragraph (1) shall include —
(a)the gains or profits as reflected in the audited account of the prescribed person for the basis period;
(b)the total value of the issued securities (the prescribed person being a company), or the total value of the trust fund (the prescribed person being the trustee of the trust fund), as the case may be, on the relevant day;
(c)the total value of the issued securities (the prescribed person being a company), or the total value of the trust fund (the prescribed person being the trustee of the trust fund), as the case may be, held by the relevant owner or relevant beneficiary, as the case may be, on the relevant day; and
(d)whether the number of relevant owner or relevant beneficiary, as the case may be, of the prescribed person or the trust fund for which the prescribed person is the trustee is less than 10 on the relevant day.
(3)  The Minister or such person as he may appoint may, in any particular case, waive the requirement under paragraph (1), subject to such conditions as he may impose.
(4)  Any fund manager of the prescribed person shall, within one month after the date of issue of the audited account of the prescribed person relating to any basis period in which the relevant day falls or such extended time as the Comptroller may allow —
(a)submit a declaration to the Comptroller, in such form as the Comptroller may specify, where the prescribed person or the trust fund for which the prescribed person is the trustee has any relevant owner or relevant beneficiary to whom section 13CA(2) or (4) of the Act applies for the basis period; and
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(b)provide such details of the relevant owner or relevant beneficiary as may be specified by the Comptroller.
(5)  Where a relevant owner or relevant beneficiary is liable to pay to the Comptroller a penalty under section 13CA of the Act, he shall declare the amount of penalty liable to be paid in its return of income for the year of assessment relating to the basis period of the relevant owner or relevant beneficiary in which the relevant day falls.
(6)  Paragraphs (1) and (4) shall not apply where the relevant owner or the relevant beneficiary is an approved company under section 13R of the Act referred to in regulation 5(1)(e).
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Made this 4th day of January 2010.
PETER ONG
Permanent Secretary,
Ministry of Finance,
Singapore.
[R032.19.4.V32; AG/LEG/SL/134/2005/29 Vol. 1]