Ruling Compendium

The technical expressions used in the Ruling are in context and are established terms for the concepts discussed.

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an example focused on charitable trusts funding advocacy related activities

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an example demonstrating the change resulting from the abandonment of the political purposes doctrine.

Paragraph 5 of the final Ruling explains that the term is being used because a charity can only have charitable purposes (or non-charitable purposes that are incidental or ancillary to a charitable purpose), and to help avoid misunderstandings that can arise because of different usage of various terms the courts have used to describe the required purpose.

Nonetheless, to help avoid confusion, a footnoted reference to the explanation in paragraph 5 has been included each time the term 'sole purpose' has been used in the final Ruling.

(a)

The principles in Aid/Watch should form a greater part of the framework put forward in the draft.

(b)

The framework of the draft is unnecessarily messy and should be rewritten with a clear enunciation of the relevant common law principles. At present it remains stained with political agendas.

(c)

The draft is silent on the proposition that profit can be made from a charitable purpose while case law is definite that it can (for example French J in Victorian Womens Lawyers at paragraph 131).

(d)

The draft needs to make it very clear that charities have all legal activities at their disposal to achieve their charitable purpose, just as governments and businesses do.

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The draft should clearly state that advocacy, lobbying and political engagement are legitimate activities for charities to engage in.

(e)

The differentiation between object, independent purpose, purpose connected to charitable main or predominant purpose, incidental or ancillary purpose and activity to further charitable purposes needs to be clarified.

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The wording of paragraphs 68 and 288 confuse objects, purposes and activities to further purpose.

(f)

The draft should contain more explicit recognition that activities to protect and to further the protection of the environment are both done for public benefit and are deserving of tax concessions.

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There should be a more general acknowledgement in the draft that protection of the environment is a public benefit. At present, there are only limited and very specific aspects included as examples in the Appendix. These unnecessarily constrain and mislead the scope of the environmental charitable purpose.

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The draft should recognise that activities done in the advancement of environmental protection are also in the public benefit and hence a charitable purpose in itself. Advocacy, lobbying and the public support of a political party done to further the charitable purpose are all activities that contribute to the public debate on the delivery of a public benefit and are conducted as a charitable purpose.

No change.

The ATO remains of the view that the structure of the Ruling is appropriate, and that the impact of the decision in Aid/Watch has been adequately addressed.

Comment 4(c)

Paragraphs 38 and 219 have been included in the final Ruling to make it clearer that a charitable institution can make a profit from its activities and still be charitable if its profit making goal is only in aid of its charitable purpose.

Comment 4(d)

Paragraph 287 of the draft Ruling has been revised (paragraph 311 of the final Ruling) and new examples have been added at paragraphs 95-103 to clarify the ATO's position on advocacy and lobbying, both as a purpose and as activities.

However, the final Ruling makes it clear at paragraph 312 that the decision in Aid/Watch has not changed the view that political parties and activities associated with political parties such as electioneering are not charitable.

Paragraphs 290 and 291 of the draft Ruling (paragraphs 313 - 314 of the final Ruling) address the ATO's position on political activities that are incidental to a charitable purpose.

Comment 4(e)

Paragraph 28 of the draft Ruling (paragraph 29 of the final Ruling) has been reworded to help clarify the distinction between the different concepts.

The lobbying dot point in paragraph 68 of the draft Ruling has been removed, and paragraph 288 deleted (the ATO's position on lobbying is now reflected in paragraph 311 of the final Ruling and the examples from paragraph 95 of the final Ruling).

Comment 4(f)

No change.

The Ruling is intended as guidance on the meaning of the word charitable. Placing greater emphasis on environmental protection may limit rather than help clarify the meaning. As explained at paragraph 44 of the draft Ruling (paragraph 46 of the final Ruling), whether particular circumstances meet the requirements of a charitable purpose can only be determined on a case by case basis.

Express reference should be made to the presumption of public benefit that applies in relation to charities for the advancement of education and the advancement of religion.

Refer to paragraphs 16 and 131 of the final Ruling.

The statement that an institution 'does not include a structure controlled and operated by family members and friends' is not an accurate representation of the law. The paragraph should be amended to recognise that regard must be had to the whole of the circumstances, with no one factor determinative.

Refer to paragraphs 24 and 168 of the final Ruling.

These paragraphs do not accurately reflect the approach that should be taken in determining whether an institution's purpose is charitable. They should reflect that:

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the principal enquiry is whether the main objects (as distinct from concomitant or incidental or ancillary objects) are charitable.

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if they are, the institution is charitable unless its activities are clearly not undertaken in furtherance of the charitable purpose established by the objects (Federal Commissioner of Taxation v. Word Investments Limited (2008) 236 CLR 204; [2008] HCA 55 (Word Investments) at paragraph 26)

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if the constituent documents are unclear, an examination of the activities and 'other relevant factors' may be necessary (Word Investments at paragraph 14). Relevant authority for each of these other factors should be cited.

In Word Investments Limited (2008) 236 CLR 204; [2008] HCA 55 the High Court said at paragraph 17:

... there is no reason to suppose that the tests laid down in the s 23(e) line of cases no longer apply in relation to the 1997 Act to companies like Word, which state objects in a memorandum. That is, it is necessary to examine the objects, and the purported effectuation of those objects in the activities, of the institution in question.

The approach taken in the Ruling aligns with these comments.

Footnote 32 has been added to paragraph 32 of the final Ruling to refer to authorities that comment on 'other relevant factors'.

The third dot point should refer to a charitable purpose that 'is consistent with' rather than 'the same' as the charitable purpose of the institution itself. To require the purpose to be identical is overly limiting and not a reflection of the true position under the law.

Refer to paragraph 48 of the final Ruling.

The accumulated profits discussion is unclear.

Accumulated profits are usually cash/investment reserves that generate income which is vital to ensuring that an organisation can meet its operational expenses. Include 'the investment of accumulated funds to generate returns used by the organisation to meet obligations and ensure sufficient cash flow' in paragraph 59.

Refer to paragraphs 62 and 276 of the final Ruling.

If holding passive investments is an activity that can be carried on by a charitable institution, there are obvious practical difficulties in distinguishing between a fund and an institution.

See paragraphs 61, 62, 275 and 276 of the final Ruling.

Questionable conclusions have been drawn from the authorities the Commissioner has relied on. They are not a good foundation for the position taken.

The ATO remains of the view that the position reflected in these paragraphs is sound.

However, the explanation from paragraphs 278-287 of the final Ruling has been expanded to provide a more detailed analysis of the basis for the position taken.

Direct lobbying of parliamentarians should be accepted as coming within the scope of what the High Court in Aid/Watch described as 'an indispensable incident' of the Australian Constitution.

It cannot be that charities can legitimately agitate for change using public campaigning tools, but cannot raise matters directly with decision makers.

It is a legitimate public campaigning tool and should not be excluded from acceptable purposes.

Singling out direct lobbying is inconsistent with the majority judgment in Aid/Watch which did not distinguish between 'direct ' and 'indirect' lobbying and is likely to create uncertainty. It clouds the remainder of the Ruling.

If the reference is retained, guidance by way of additional examples illustrating what is meant by 'direct lobbying' should be included.

The use of 'female' in the example is anachronistic. Replace with 'women'.

Refer to paragraph 77 of the final Ruling.

The quote from Pamas is out of context and suggests a far narrower scope than a proper interpretation permits. The full quote states that the juxtaposition of various terms 'tends to suggest' that the word institution is to be given a meaning greater than a structure controlled by family and friends. Further, the Court did not exclude the foundation as an institution merely on the basis of one factor alone.

Refer to paragraphs 166 and 168 of the final Ruling.

Inconsistent with paragraph 203. Paragraph 192 says 'clauses setting out powers such as the power to accumulate funds' can be relevant in determining purpose, but paragraph 203 states that a power to retain profits cannot negate the character as a charitable institution.

This accords with the stated relevance of the power referred to in paragraph 203 of the draft Ruling (paragraph 221 in the final ruling).

The paragraph refers to operational features helping to indicate whether an institution's purpose is charitable. It is not clear how operational features can influence whether an organisation has a charitable purpose.

These paragraphs deal with accumulation for a charitable institution. Can the same accumulation principle apply to a charitable fund? Consider including paragraph 21 from TR 2000/11.

The statement 'the activities carried on by the trustees subsequent to establishment are not relevant to establishing whether a fund is a charitable fund. In this respect charitable funds are different to charitable institutions as the activities of an institution can be relevant in determining its purpose...' suggests the charitable purpose of a fund and the charitable purpose of an institution may be ascertained differently. This is inconsistent with existing case law: it is settled law that 'charity' and 'institution' are separate not composite terms, so determining whether a purpose is charitable should be the same for both funds and institutions.

For the reasons outlined in paragraph 227 of the final Ruling, how the purpose of an entity is established depends on whether the entity is a fund or an institution. Once the purpose is established, determining whether that purpose is charitable or not does not depend on the nature of the entity.

The discussion regarding Income Tax Exempt Funds requires some changes to clarify the operation of the relevant state trust legislation.

Refer to paragraphs 228 and 229 of the final Ruling.

The reference in the second line to the 'Victorian Administrative Appeals Tribunal' as the relevant Tribunal in Re Australian Institute of Management (Vic) and Commissioner of State Revenue (Vic) should be to the 'Victorian Civil and Administrative Tribunal'.

The reference is correct.

Expand the discussion in these paragraphs to more clearly cover economic and community development activities and social enterprises as queries regarding these are much more common than queries regarding organisations like Word Investments or Aid/Watch.

Refer to paragraphs 251 - 257 of the final Ruling.

The discussion in this paragraph regarding Oldham Training is misleading. The Oldham Training case held that setting up unemployed people in trade and business to enable them to stand on their own feet was charitable as the relief of poverty or within the fourth head as beneficial to the community. The adverse decision turned on a construction of the objects.

All the cases and examples are examples of non-charitable purposes. Consider including examples where the private benefit is simply ancillary and incidental

The cases listed in paragraph 237 seem to relate to private benefits rather than business like benefits.

The heading 'business-like benefits' has been changed to 'benefits for individual entities that may not be members of an organisation' to better reflect the content (see paragraph 251 of the final Ruling).

Refer to paragraphs 245-257 of the final Ruling.

Needs revision. The reference to 'merely because a motivation of an institution has some social value (such as reducing unemployment)' does not seem consistent with the Oldham Training case as a purpose of reducing unemployment can be a charitable purpose, and private benefits can be incidental to the public benefit of reducing unemployment.

Include the following additional dot point: where commercial operations are carried out in order to carry out the charitable purpose - for example conducting a business activity for the purpose of training and employing people suffering from a disadvantage (for example mental or physical disability or homelessness) where employment and training for employment would otherwise be difficult to obtain.

Refer to paragraphs 61 and 275 of the final Ruling.

Expand to refer to control under statute or in the constituent documents, control through membership or at board level or through the ability of a Minister to control activities or finances or operations. These can all still affect charitable status as Central Bayside simply dealt with control through the funding agreement and having aligned purposes as being insufficient to affect charitable status.

Refer to paragraphs 278 to 286 of the final Ruling.

Does this apply only to institutions, or can it apply to trusts as well?

Include 'provided the entity is not controlled by government'.

Refer to paragraph 287 of the final Ruling.

These could be developed to clarify the ATO's position on lobbying by including an example illustrating acceptable lobbying. This would be a useful reference point for both charities who are engaged in advocacy, and the entities who provide those entities with funding.

Indigenous persons paragraph:

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replace 'Islanders' with "Torres Strait Islanders'

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replace 'native' with 'Indigenous'

Peace and human rights paragraph:

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replace 'research into the observance of human rights' with 'working to promote, protect and fulfil human rights, research into human rights violations'.

Refer to paragraph 337 of the final Ruling.