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Taxation Laws Amendment Act (No. 2) 1993 (18 of 1993)

PART 3   AMENDMENT OF THE INCOME TAX ASSESSMENT ACT 1936

Division 2   Amendments to improve the readability of section 78 of the Principal Act (which deals with deductions for gifts, pensions etc.)

Subdivision A   New section 78

8   Section 78 of the Principal Act is repealed and the following section is substituted

Deduction for gifts, pensions etc.

Objects

"78.(1) The object of this section is to provide for the deductibility of certain gifts, contributions, pensions, gratuities and retiring allowances.

Outline

"(2) The following table sets out an outline of this section:

------------------------------------------------------------------------

Type of deduction Entitlement Ancillary

to Valuation rules provisions

deduction

------------------------------------------------------------------------

Gifts to certain (4),(5) (12) -

funds, authorities

or institutions

------------------------------------------------------------------------

Gifts to

The Australiana (6) (13),(14),(15) (16)

Fund, libraries,

museums or art

galleries

------------------------------------------------------------------------

Gifts to Artbank (7) (13),(14),(15) (16)

------------------------------------------------------------------------

Gifts of heritage (8) (13),(14),(15) (16)

properties to

National Trust

------------------------------------------------------------------------

Contributions to (9),(10) (17) -

registered political

parties

------------------------------------------------------------------------

Pensions, gratuities (11) - -

or retiring allowances

for ex-employees etc.

------------------------------------------------------------------------

Index

"(3) The following is an index to this section:

------------------------------------------------------------------------

Academies - professional (4)-Table 2

Academy of the Social Sciences in

Australia Incorporated (4)-Table 2, item 2.2.1

Amnesty International (4)-Table 4, item 4.2.1

Ancillary funds (5)

Antarctic research (4)-Table 3, item 3.2.3

Apportionment of deductions under

subsection (6), (7) or (8) (16)

Approved research institutes-

section 73A (4)-Table 3, item 3.1.1

Armed forces, auxiliaries (4)-Table 5, item 5.1.2

Artbank (7)

Art galleries (4)-Table 12, items

12.1.4 and 12.1.5; (6)

Australian Academy of Science (4)-Table 2, item 2.2.2

Australian Academy of Technological

Sciences and Engineering Limited (4)-Table 2, item 2.2.4

Australian Academy of the Humanities

for the Advancement of Scholarship in

Language, Literature, History,

Philosophy and the Fine Arts (4)-Table 2, item 2.2.3

Australian Administrative Staff College (4)-Table 2, item 2.2.5

Australiana Fund (4)-Table 12, item

12.2.1; (6)

Australian and New Zealand Association

for the Advancement of Science (4)-Table 2, item 2.2.6

Australian College of Obstetricians and

Gynaecologists (4)-Table 1, item 1.2.1

Australian College of Occupational

Medicine (4)-Table 1, item 1.2.2

Australian Conservation Foundation

Incorporated (4)-Table 6, item 6.2.1

Australian Institute of International

Affairs (4)-Table 9, item 9.2.1

Australian Ireland Fund (4)-Table 2, item 2.2.7

Australian National Travel Association (4)-Table 9, item 9.2.2

Australian Postgraduate Federation in

Medicine (4)-Table 1, item 1.2.3

Australian Regional Council of the Royal

College of Obstetricians and

Gynaecologists (4)-Table 1, item 1.2.11

Australian Sports Foundation (4)-Table 10, item 10.2.1

Centre for Independent Studies (4)-Table 3, item 3.2.1

Child Accident Prevention Foundation of

Australia (4)-Table 4, item 4.2.2

College buildings (4)-Table 2, item

2.1.10

College of Radiologists in Australasia (4)-Table 1, item 1.2.4

Conditional gifts:-

subsection (6), (7) or (8) (15)

Connellan Airways Trust (4)-Table 11, item 11.2.1

Conservation bodies (4)-Table 6

Council for Christian Education in

Schools (4)-Table 2, item

2.2.10

Council for Jewish Education in Schools (4)-Table 2, item 2.2.

11

Cultural organisations (4)-Table 12

Defence organisations (4)-Table 5

Definitions (26)

Diseases - institutions researching

causes, prevention or cure (4)-Table 1, items 1.1.4 and 1.1.5

Education bodies (4)-Table 2

Employees-pensions etc. (11)

Environmental organisations (4)-Table 6

Family organisations (4)-Table 8

Foundation for Development Cooperation

Ltd (4)-Table 9, item 9.2.3

Friends of the Duke of Edinburgh's

Award in Australia Incorpoated (4)-Table 11, item 11.2.2

Girl Guides (4)-Table 10, items

10.2.2 and 10.2.3

Gratuities for ex-employees (11)

Greening Australia Limitd (4)-Table 6, item 6.2.2

Health organisations (4)-Table I

Herbert Vere Evatt Memorial Foundation

Incorporated (4)-Table 11, item

11.2.3

Heritage properties (8)

Hospitals (4)-Table 1, items 1.1.1

and 1.1.2

H.R.H. The Duke of Edinburgh's

Commonwealth Study Conferences

(Australia) Incorporated (4)-Table 2, item 2.2.12

Ian Clunies Ross Memorial Foundation (4)-Table 3, item 3.2.2

Industrial Design Council of Australia (4)-Table 7, item 7.2.1

Industry, trade and design (4)-Table 7

International affairs (4)-Table 9

Joint ownership of property:-

subsection (6), (7) or (8) (16)

Landcare Australia Limited (4)-Table 6, item 6.2.3

Libraries (4)-Table 12, items

12.1.2 and 12.1.5; (6)

Life Education Centre (4)-Table 2, item 2.2.8

Lionel Murphy Foundation (4)-Table 2, item 2.2.13

Marcus Oldham Farm Management

College (4)-Table 2, item 2.2.14

Marriage guidance organisations (4)-Table 8, item 8.1.1

Medical colleges (4)-Table I

Medical research (4)-Table 1

Museums (4)-Table 12, items

12.1.3 and 12.1.5; (6)

National Foundation for Australian

Women Limited (4)-Table 4, item 4.2.3

National Parks associations (4)-Table 6

National Safety Council of Australia (4)-Table 4, item 4.2.4

National Trust bodies (4)-Table 6; (8)

Nature organisations (4)-Table 6

Necessitous circumstances - funds for

relief of persons in (4)-Table 4, item 4.1.3

New South Wales College of Nursing (4)-Table 1, item 1.2.5

Nursing Mothers' Association of

Australia (4)-Table 8, item 8.2.1

Overseas aid funds (4)-Table 9, item 9.1.1

Pearl Watson Foundation Limited (4)-Table 4, item 4.2.5

Pensions for ex-employees (11)

Philanthropic trusts (4)-Table 11

Playford Memorial Trust (4)-Table 11, item

11.2.4

Political contributions (9),(10)

Political parties (9),(10)

Prevention of cruelty to animals (4)-Table 4

Productivity (4)-Table 7

Productivity Promotion Council of Australia (4)-Table 7, item

7.2.2

Property - gifts of (4)-(10)

- valuations of (12)-(17)

Public benevolent institution (4)-Table 4, item

4.1.1

Queen Elizabeth 11 Silver Jubilee Trust (4)-Table 11, item

for Young Australians 11.2.6

Queen Elizabeth the Second Coronation (4)-Table 11, item

Gift Fund 11.2.8

Religious instruction/education (4)-Table 2

Research institutions (4)-Table 3

Residential education institutions (4)-Table 2

Retiring allowances for ex-employees (11)

Royal Australian and New Zealand

College of Psychiatrists (4)-Table 1, item 1.2.6

Royal Australian College of General

Practitioners (4)-Table 1, item

1.2.7

Royal Australasian College of Physicians (4)-Table 1, item

1.2.8

Royal Australasian College of Surgeons (4)-Table 1, item

1.2.9

Royal College of Nursing, Australia (4)-Table 1, item

1.2.12

Royal College of Pathologists of

Australasia (4)-Table 1, item

1.2.10

Rural school hostels (4)-Table 2, item 2.

1. 11

School buildings (4)-Table 2, item

2.1.10

Schools (4)-Table 2

Scouts (4)-Table 10, items

10.2.4 and 10.2.5

Shrine of Remembrance Restoration and

Development Trust (4)-Table 5, item

5.2.1

Sir Robert Menzies Memorial Trust

Foundation Limited (4)-Table 11, 11.2.5

Sports and recreation (4)-Table 10

Tax incentives for the arts See `Property'

Tertiary education/TAFE (4)-Table 2

Trusts - philanthropic (4)-Table 11

- ancillary (5)

Universities - general (4)-Table 2

- research (4)-Table 3

Valuations (12)-(17)

Valuers (18)

Victoria Conservation Trust (4)-Table 6,item 6.2.6

Welfare and rights (4)-Table 4

Wills (5)

Winston Churchill Memorial Trust (4)-Table 11, item,

11.2.7

Work Skill Australia Foundation (4)-Table 7, item

Incorporated 7.2.3

Works of art See `Property'

World Wide Fund for Nature Astralia (4)-Table 6, item

6.2.22

------------------------------------------------------------------------

Deductions for gifts-listed funds, authorities and institutions

"(4) A gift by a taxpayer to a fund, authority or institution mentioned in any of the following tables is an allowable deduction for the year of income in which the gift was made if:

(a) the fund, authority or institution is in Australia; and

(b) the gift is:

(i) money; or

(ii) property that was purchased by the taxpayer during the 12 months before the gift was made; or

(iii) property that is trading stock of the taxpayer to which subsection 36(1) applies, where the taxpayer has not made, and does not make, an election under subsection 36 (3) or section 36AAA in relation to the property; and

(c) the value of the gift is $2 or more; and

(d) the gift is not a testamentary gift; and

(e) if one or more special conditions are set out in the table opposite the name of the fund, authority or institution-those conditions are satisfied; and

(f) if the gift is property-a deduction is not allowable to the taxpayer under subsection (6), (7) or (8) in respect of the gift.

Each item is independent of every other item.

GUIDE TO TABLES

1. Health

2. Education

3. Research

4. Welfare and Rights

5. Defence

6. The Environment

7. Industry, Trade and Design

8. The Family

9. International Affairs

10. Sports and Recreation

11. Philanthropic Trusts

12. Cultural Organisations

TABLE 1 - HEALTH

------------------------------------------------------------------------

Item Fund, authority or Special

institution conditions

------------------------------------------------------------------------

1.General 1.1.1 a public hospital

----------------------------------------------------------

1.1.2 a hospital carried on by a society

or association otherwise than for

the purposes of profit or gain to

the individual members of the soc-

iety or association

----------------------------------------------------------

1.1.3 a public fund established before

23 October 1963 and maintained

for the purpose of providing

money for hospitals covered by

items 1.1.1 or 1.1.2 or for the

establishment of such hospitals

-----------------------------------------------------------

1.1.4 a public authority engaged in the gift must

research into the causes, be for such

prevention or cure of disease in research

human beings, animals or plants

----------------------------------------------------------

1.1.5 a public institution engaged solely

in research into the causes,

prevention or cure of disease in

human beings, animals or plants

------------------------------------------------------------------------

2.Specific 1.2.1 the Australian College of

Obstetricians and Gynaecologists

----------------------------------------------------------

1.2.2 the Australian College of

Occupational Medicine

------------------------------------------------------------------------

1.2.3 the Australian Postgraduate the gift must be

Federation in Medicine made for education

or research in

medical knowledge

or science

---------------------------------------------

1.2.4 the College of Radiologists the gift must be

in Australasia made for educa-

tion or research

in medical know-

ledge or science

----------------------------------------------------------

1.2.5 the New South Wales College of

Nursing

----------------------------------------------------------

1.2.6 the Royal Australian and New

Zealand College of Psychiatrists

----------------------------------------------------------

1.2.7 the Royal Australian College of the gift must be

General Practitioners made for educa-

tion or research

in medical

knowledge or

science

-----------------------------------------------------------

1.2.8 the Royal Australasian College

of Physicians

----------------------------------------------------------

1.2.9 the Royal Australasian College

of Surgeons

----------------------------------------------------------

1.2.10 the Royal College of the gift must be

Pathologists of Australasia made for educa-

tion or research

in medical

knowledge or

science

-----------------------------------------------------------

+ 1.2.11 the Australian Regional Council

of the Royal College of

Obstetricians and Gynaecologists

-----------------------------------------------------------

1.2.12 the Royal College of Nursing,

Australia

------------------------------------------------------------------------

--------------------------------------------------------------------------

TABLE 2 - EDUCATION

------------------------------------------------------------------------

Item Fund, authority or Special

institution conditions

------------------------------------------------------------------------

1.General 2.1.1 a public university

---------------------------------------------------------

2.1.2 a public fund for the

establishment of a public

university

---------------------------------------------------------

2.1.3 a higher education institution

within the meaning of the

Employment, Education and

Training Act 1988

----------------------------------------------------------

2.1.4 a residential educational insti-

tution affiliated under statutory

provisions with a public

university

----------------------------------------------------------

2.1.5 a residential educational insti-

tution established by the

Commonwealth

----------------------------------------------------------

2.1.6 a residentia educational insti-

tution that is affiliated with

a higher education institution

within the meaning of the Employ-

ment, Education and Training

Act 1988

---------------------------------------------------------

2.1.7 an institution that is certified the gift must be

by the Minister for Employment, for certified

Education and Training, by purposes of

signed instrument, to be a the institution

technical and further educa- or for the pro-

tion institution within the vision of

meaning of the Employment, certified

Education and Training Act facilities

1988 for the inst-

itution (see

subsection (26))

----------------------------------------------------------

2.1.8 a public fund established and

maintained exclusively for the

purpose of providing religious

instruction in government schools

in Australia

----------------------------------------------------------

2.1.9 a public fund established and

maintained by a Roman Catholic

archdiocesan or diocesan authority

exclusively for the purpose of

providing religious instruction

in government schools in Australia

----------------------------------------------------------

2.1.10 a public fund established and

maintained exclusively for

providing money for the

acquisition, construction or

maintenance of a building used,

or to be used, as a school or

college by-

(a) a government; or

(b) a public authority; or

(c) a society or association

which is carried on

otherwise than for the

purposes of profit or gain to

the individual members of

the society or association

----------------------------------------------------------

2.1.11 a public fund established and

maintained exclusively for

providing money for the

acquisition, construction or

maintenance of an eligible rural

school hostel building (see

subsection (26))

----------------------------------------------------------

2.Specific 2.2.1 The Academy of the Social Sciences

in Australia Incorporated

----------------------------------------------------------

2.2.2 the Australian Academy of Science

-----------------------------------------------------------

2.2.3 the Australian Academy of the

Humanities for the Advancement of

Scholarship in Language, Litera-

ture, History, Philosophy and

the Fine Arts

----------------------------------------------------------

2.2.4 the Australian Academy of

Technological Sciences and

Engineering Limited

----------------------------------------------------------

2.2.5 the Australian Administrative Staff

College

----------------------------------------------------------

2.2.6 the Australian and New Zealand

Association for the Advancement of

Science

----------------------------------------------------------

2.2.7 the Australian Ireland Fund

----------------------------------------------------------

2.2.8 the Life Education Centre

----------------------------------------------------------

2.2.9 a company that conducts life (a) the gift

education programs under the must be for

auspices of the Life Education the conduct

Centre of such

programs; and

(b) the company

must not be

carried on for

the purposes of

profit or gain

to its indivi-

dual members;

and

(c) the company

must, by the

terms of the

company's

constituent

document, be

prohibited from

making any

distribution,

whether in

money, property

or otherwise,

to its members

----------------------------------------------------------

2.2.10 the Council for Christian

Education in Schools

----------------------------------------------------------

2.2.11 the Council for Jewish

Education in Schools

----------------------------------------------------------

2.2.12 H.R.H. The Duke of Edinburgh's

Commonwealth Study Conferences

(Australia) Incorporated

----------------------------------------------------------

2.2.13 the Lionel Murphy Foundation

----------------------------------------------------------

2.2.14 the Marcus Oldham Farm the gift must

Management College be for

certified

purposes of

the college or

for the

provision of

certified

facilities

for the college

(see subsection

(26))

------------------------------------------------------------------------

------------------------------------------------------------------------

TABLE 3 - RESEARCH

------------------------------------------------------------------------

1 General 3.1.1 a university, college, insti- the gift must

tute association or organis- be for

ation which is an approved the purposes of

research institute for the scientific

purposes of section 73A research as

defined in

section 73A

----------------------------------------------------------

2 Specific 3.2.1 the Centre for Independent

Studies

----------------------------------------------------------

3.2.2 the Ian Clunies-Ross Memorial

Foundation

----------------------------------------------------------

3.2.3 the Commonwealth the gift must

be made for

purposes of

research in the

Australian

Antarctic

Territory

------------------------------------------------------------------------

TABLE 4-WELFARE AND RIGHTS

Item

Fund, authority or institution

Special conditions

1. General

4.1.1

a public benevolent institution

4.1.2

a public fund established before 23 October 1963 and maintained

for the purpose of providing money for public benevolent

institutions or for the establishment of public benevolent

institutions

4.1.3

a public fund established and maintained for the relief of persons

in Australia who are in necessitous circumstances

2. Specific

4.2.1

Amnesty International

4.2.2

the Child Accident Prevention Foundation of Australia

4.2.3

the National Foundation for Australian Women Limited

4.2.4

the National Safety Council of Australia

4.2.5

the Pearl Watson Foundation Limited

4.2.6

the Royal Society for the Prevention of Cruelty to Animals New

South Wales

4.2.7

the Royal Society for the Prevention of Cruelty to Animals

(Victoria)

4.2.8

the Royal Queensland Society for the Prevention of Cruelty

4.2.9

the Royal Society for the Prevention of Cruelty to Animals (South

Australia) Incorporated

4.2.10

the Royal Society for the Prevention of Cruelty to Animals Western

Australia (Incorporated)

4.2.11

the R.S.P.C.A. (Tasmania) Incorporated

4.2.12

the Society for the Prevention of Cruelty to Animals (Northern

Territory)

4.2.13

the Royal Society for the Prevention of Cruelty to Animals

(A.C.T.) Incorporated

4.2.14

the R.S.P.C.A. Australia Incorporated

--------------------------------------------------------------------------

TABLE 5 - DEFENCE

------------------------------------------------------------------------

1.General 5.1.1 the Commonwealth or a State the gift must

be made for

purposes of

defence

----------------------------------------------------------

5.1.2 a public institution established

and maintained for the comfort,

recreation or welfare of members

of the armed forces of any part of

Her Majesty`s dominions, or of any

allied or other foreign force serv-

ing in association with Her

Majesty`s armed forces

------------------------------------------------------------------------

2.Specific 5.2.1 the Shrine of Remembrance

Restoration and Development

Trust

--------------------------------------------------------------------------

TABLE 6 - THE ENVIRONMENT

------------------------------------------------------------------------

1.General 6.1.1 a fund that, when the gift is made,

is on the Register of Environmental

Organisations kept under section

78AB

----------------------------------------------------------

2.Specific 6.2.1 the Australian Conservation special

Foundation Incorporated conditions

set out in

subsection

(25)

----------------------------------------------------------

6.2.2 Greening Australia Limited special

conditions

set out in

subsection

(25)

----------------------------------------------------------

6.2.3 Landcare Australia Limited special

conditions

set out in

subsection

(25)

----------------------------------------------------------

6.2.4 the National Parks Association special

of New South Wales conditions

set out in

subsection

(25)

----------------------------------------------------------

6.2.5 the Victorian National Parks special

Association conditions

set out in

subsection

(25)

----------------------------------------------------------

6.2.6 the Victoria Conservation Trust special

conditions

set out in

subsection

(25)

----------------------------------------------------------

6.2.7 the National Parks Association special

of Queensland conditions

set out in

subsection

(25)

----------------------------------------------------------

6.2.8 The Nature Conservation Society special

of South Australia Incorporated conditions

set out in

subsection

(25)

----------------------------------------------------------

6.2.9 the National Parks Foundation of special

South Australia Incorporated conditions

set out in

subsection

(25)

----------------------------------------------------------

6.2.10 the Western Australian National special

Parks and Reserves Association conditions

Incorporated set out in

subsection

(25)

----------------------------------------------------------

6.2.11 the Tasmanian Conservation Trust special

Incorporated conditions

set out in

subsection

(25)

----------------------------------------------------------

6.2.12 the National Parks Association special

of the Australian Capital conditions

Territory Incorporated set out in

subsection

(25)

----------------------------------------------------------

6.2.13 the National Trust of Australia

(New South Wales)

----------------------------------------------------------

6.2.14 the National Trust of Australia

(Victoria)

----------------------------------------------------------

6.2.15 The National Trust of Queensland

----------------------------------------------------------

6.2.16 The National Trust of South

Australia

----------------------------------------------------------

6.2.17 The National Trust of Australia

(W.A.)

----------------------------------------------------------

6.2.18 the National Trust of Australia

(Tasmania)

----------------------------------------------------------

6.2.19 The National Trust of Australia

(Northern Territory)

----------------------------------------------------------

6.2.20 the National Trust of Australia

(A.C.T.)

----------------------------------------------------------

6.2.21 the Australian Council of National

Trusts

----------------------------------------------------------

6.2.22 the World Wide Fund for Nature special

Australia conditions

set out in

subsection

(25)

--------------------------------------------------------------------------

TABLE 7 - INDUSTRY, TRADE AND DESIGN

------------------------------------------------------------------------

1.General 7.1.1 - -

------------------------------------------------------------------------

2 Specific 7.2.1 the Industrial Design Council of

Australia

----------------------------------------------------------

7.2.2 the Productivity Promotion Council

of Australia

----------------------------------------------------------

7.2.3 the Work Skill Australia Foundation

Incorporated

------------------------------------------------------------------------

------------------------------------------------------------------------

TABLE 8 - THE FAMILY

------------------------------------------------------------------------

1.General 8.1.1 a public fund established and the organisa-

maintained exclusively for the tion ,branch

purpose of providing money to or section, as

be used in giving marriage the case may

guidance to persons in be, must be

Australia through a approved by

voluntary organisation or the Attorney

through a branch or section -General (see

of such an organisation subsection

(24)

------------------------------------------------------------------------

2 Specific 8.2.1 the Nursing Mothers' Association

of Australia

------------------------------------------------------------------------

TABLE 9 - INTERNATIONAL AFFAIRS

------------------------------------------------------------------------

1 General 9.1.1 a public fund in respect of which

there is in force, at the time when

the gift is made, a declaration under

subsection (21) that the fund is an

eligible fund for the purposes of this

item

------------------------------------------------------------------------

2 Specific 9.2.1 the Australian Institute of

International Affairs

----------------------------------------------------------

9.2.2 the Australian National Travel

Association

----------------------------------------------------------

9.2.3 The Foundation for Development

Cooperation Ltd

------------------------------------------------------------------------

------------------------------------------------------------------------

TABLE 10 - SPORTS AND RECREATION

------------------------------------------------------------------------

1 General 10.1.1 - -

----------------------------------------------------------

2 Specific 10.2.1 the Australian Sports Foundation

----------------------------------------------------------

10.2.2 the Girl Guides Association of

Australia

----------------------------------------------------------

10.2.3 an institution that is known as

a State or Territory branch of

the Girl Guides Association of

Australia

----------------------------------------------------------

10.2.4 the Scout Association of Australia

----------------------------------------------------------

10.2.5 an institution that is known as

a State or Territory branch of

the Scout Association of Australia

------------------------------------------------------------------------

TABLE 11 - PHIANTHROPIC TRUSTS

------------------------------------------------------------------------

1 General 11.1.1 - -

------------------------------------------------------------------------

2 Specific 11.2.1 the Connellan Airways Trust

----------------------------------------------------------

11.2.2 The Friends of the Duke of

Edinburgh's Award in Australia

Incorporated

----------------------------------------------------------

11.2.3 the Herbert Vere Evatt Memorial

Foundation Incorporated

----------------------------------------------------------

11.2.4 the Playford Memorial Trust

----------------------------------------------------------

11.2.5 The Sir Robert Menzies Memorial

Foundation Limited

----------------------------------------------------------

11.2.6 the Queen Elizabeth II Silver

Jubilee Trust for Young Australians

----------------------------------------------------------

11.2.7 the Winston Churchill Memorial

Trust

----------------------------------------------------------

11.2.8 the Queen Elizabeth the Second

Coronation Gift Fund

--------------------------------------------------------------------------

TABLE 12 - CULTURAL ORGANISATIONS

------------------------------------------------------------------------

1 General 12.1.1 a fund that, when the gift is

made,is on the Register of

Cultural Organisations kept

under section 78AA

----------------------------------------------------------

12.1.2 a public library

----------------------------------------------------------

12.1.3 a public museum

----------------------------------------------------------

12.1.4 a public art gallery

----------------------------------------------------------

12.1.5 an institution consisting of

a public library, public museum

and public art gallery or of any

2 of them

------------------------------------------------------------------------

2 Specfic 12.2.1 The Australiana Fund

------------------------------------------------------------------------

Deductions for gifts-ancillary funds

"(5) A gift by a taxpayer to a fund is an allowable deduction for the year of income in which the gift was made if:

(a) the fund is a public fund established and maintained under a will or instrument of trust exclusively for:

(i) the purpose of providing money, property or benefits to or for funds, authorities or institutions referred to, and for the purposes (if any) referred to, in any of the items in the tables in subsection (4); or

(ii) the establishment of such funds, authorities or institutions; and

(b) the Commissioner is satisfied that the terms of the will or instrument of trust are such that any money (including income derived from investments and proceeds of the realisation of investments):

(i) paid or accrued to the fund as a direct or indirect result of the gift; and

(ii) not applied for the purposes of the fund;

may not be invested by the trustee otherwise than in a manner in which trustees are permitted by an Act, a State Act or a law of a Territory to invest trust money without special authorisation; and

(c) the gift is:

(i) money; or

(ii) property that was purchased by the taxpayer during the 12 months before the gift was made; or

(iii) property that is trading stock of the taxpayer to which subsection 36 (1) applies, where the taxpayer has not made, and does not make, an election under subsection 36 (3) or section 36AAA in relation to the property; and

(d) the value of the gift is $2 or more; and

(e) the gift is not a testamentary gift; and

(f) if the gift is property-a deduction is not allowable to the taxpayer under subsection (6), (7) or (8) in respect of the gift.

Deductions for gifts of property-Australiana Fund, libraries, museums and art galleries

"(6) A gift by a taxpayer to:

(a) The Australiana Fund; or

(b) a public library in Australia; or

(c) a public museum in Australia; or

(d) a public art gallery in Australia; or

(e) an institution in Australia consisting of a public library, a public museum and a public art gallery or any 2 of them;

is an allowable deduction for the year of income in which the gift was made if:

(f) the gift is property (other than an estate or interest in land or in a building or part of a building); and

(g) the value of the gift is $2 or more; and

(h) the property is given to, and accepted by, The Australiana Fund or the authority or institution concerned for inclusion in the collection, or any of the collections, maintained or being established by that Fund, authority or institution; and

(i) the gift is not a testamentary gift; and

(j) the special valuation conditions set out in subsection (13) are complied with.

Deductions for gifts of property-Artbank

"(7) A gift by a taxpayer to the Commonwealth is an allowable deduction for the year of income in which the gift was made if:

(a) the gift is property (other than an estate or interest in land or in a building or part of a building); and

(b) the property is given to, and accepted by the Commonwealth for inclusion in the collection, or any of the collections, maintained or being established for the purposes of Artbank; and

(c) the gift is not a testamentary gift; and

(d) the special valuation conditions set out in subsection (13) are complied with.

Deductions for gifts of heritage properties-National Trust

"(8) A gift by a taxpayer to:

(a) the National Trust of Australia (New South Wales); or

(b) the National Trust of Australia (Victoria); or

(c) The National Trust of Queensland; or

(d) The National Trust of South Australia; or

(e) The National Trust of Australia (W.A.); or

(f) the National Trust of Australia (Tasmania); or

(g) The National Trust of Australia (Northern Territory); or

(h) the National Trust of Australia (A.C.T.); or

(i) the Australian Council of National Trusts;

is an allowable deduction for the year of income in which the gift was made if:

(j) the gift is property; and

(k) the value of the gift is $2 or more; and

(l) the property consists of a place within the meaning of the Australian Heritage Commission Act 1975; and

(m) at the time when the gift was made, the place was listed in the Register of the National Estate kept under the Australian Heritage Commission Act 1975; and

(n) the property was accepted by the National Trust body concerned for the purpose of preserving the property for the benefit of the public; and

(o) the gift is not a testamentary gift; and

(p) the special valuation conditions set out in subsection (13) are complied with.

Deductions for contributions to political parties

"(9) A contribution by a taxpayer to a registered political party (within the meaning of the Commonwealth Electoral Act 1918) is an allowable deduction for the year of income in which the contribution was made if:

(a) the contribution is:

(i) money; or

(ii) property that was purchased by the taxpayer during the 12 months before the contribution was made; and

(b) the value of the contribution is $2 or more; and

(c) the taxpayer is not a company; and

(d) the contribution is not a testamentary contribution.

$100 annual limit for deductions for contributions to political parties

"(10) The total deductions allowable to a taxpayer under subsection (9) in respect of a year of income must not exceed $100.

Deductions for pensions, gratuities or retiring allowances to ex-employees etc.

"(11) An amount paid by a taxpayer as a pension, gratuity or retiring allowance to a person who is or was an employee or a dependant of an employee is an allowable deduction for the year of income in which it was paid. However:

(a) it is an allowable deduction under this subsection only to the extent that, in the Commissioner's opinion, it is paid in good faith in consideration of the past services of the employee in any business operations that were carried on by the taxpayer for the purpose of gaining or producing assessable income; and

(b) it is not an allowable deduction under this subsection if it is an allowable deduction under any other provision of this Act.

Value of property for the purposes of subsections (4) and (5)

"(12) For the purposes of subsections (4) and (5), the value of a gift of property is:

(a) if:

(i) the property is trading stock of the taxpayer to which subsection 36 (1) applies; and

(ii) the taxpayer has not made, and does not make, an election under subsection 36 (3) or section 36AAA in relation to the property;

the value of the property that is, because of subsection 36 (1), included in the taxpayer's assessable income; or

(b) in any other case-whichever is the lesser of:

(i) the value of the property at the time of the making of the gift; or

(ii) the amount paid by the taxpayer for the property.

Gifts of property covered by subsections (6), (7) and (8)-special valuation conditions

"(13) For the purposes of subsections (6), (7) and (8), a taxpayer complies with the special valuation conditions in relation to a gift of property if:

(a) both:

(i) assuming that the taxpayer had sold the property instead of making the gift, any profits or proceeds from the sale would have been included in the taxpayer's assessable income; and

(ii) the making of the gift does not result in an amount being included in the taxpayer's assessable income; or

(b) all of the following conditions are satisfied:

(i) the taxpayer gives the Commissioner 2 or more written valuations stating the amount that, in the opinion of the person making the valuation, was:

(A) the value of the property at the time when the gift was made; or

(B) if the valuation was made not earlier than 90 days (or such longer period as the Commissioner allows) before, and not later than 90 days (or such longer period as the Commissioner allows) after, the day on which the gift was made-the value of the property at the time when the valuation was made;

(ii) the valuations are by persons each of whom was, at the time of making the valuation, an approved valuer in relation to property of the kind concerned;

(iii) the written valuations are given to the Commissioner:

(A) with the taxpayer's return of income for the year of income in which the gift was made; or

(B) if more than one such return is given-with the first return; or

(C) within such further period as the Commissioner allows.

Value of gift-subsections (6), (7) and (8)

"(14) Subject to subsection (15) (which deals with conditional gifts), for the purposes of subsections (6), (7) and (8), the value of a gift of property is as follows:

(a) if both:

(i) assuming that the taxpayer had sold the property instead of making the gift, any profits or proceeds from the sale would have been included in the taxpayer's assessable income; and

(ii) the making of the gift does not result in an amount being included in the taxpayer's assessable income;

the value of the gift is:

(iii) if the taxpayer purchased the property-the amount paid by the taxpayer for the property; or

(iv) if the taxpayer created or produced the property-the amount equal to so much of the cost of creating or producing the property as would have been allowed as a deduction to the taxpayer if the property had been sold by the taxpayer;

(b) if paragraph (a) does not apply and the taxpayer:

(i) acquired the property within 12 months before the making of the gift otherwise than as a result of:

(A) a will, a codicil or an order of a court that varied or modified the provisions of a will or codicil; or

(B) an intestacy or an order of a court that varied or modified the application, in relation to the estate of a deceased person, of the provisions of the law relating to the distribution of the estates of persons who died intestate; or

(ii) acquired the property for the purpose of making a gift of the property to, or subject to an eligible agreement that the property would be gifted to:

(A) a Fund, authority or institution mentioned in subsection (6) for inclusion in its collection, or any of its collections; or

(B) the Commonwealth for inclusion in the collection, or any of the collections, of Artbank; or

(C) a body mentioned in subsection (8);

the value of the gift is whichever is the lesser of:

(iii) the amount (if any) paid by the taxpayer for the property; or

(iv) the amount that, assuming that this paragraph and subsection (15) had not been enacted, would be the value of the gift;

(c) if neither paragraph (a) nor paragraph (b) applies:

(i) if the Commissioner is of the opinion that an amount equal to the average of the values specified in the valuations given to the Commissioner under subsection (13) in relation to the property fairly represents the value of the property as at the time when the gift was made-the value of the gift is that amount; or

(ii) in any other case-the value of the gift is the amount that the Commissioner considers was the value of the property as at the time when the gift was made.

Value of conditional gift-subsections (6), (7) and (8)

"(15) For the purposes of subsections (6), (7) and (8), if:

(a) the terms and conditions on which a gift of property is made are such that the recipient does not:

(i) receive immediate custody and control of the property; or

(ii) have the unconditional right to retain custody and control of the property in perpetuity; or

(iii) obtain an immediate, indefeasible and unencumbered legal and equitable title to the property; or

(b) the Commissioner is satisfied that the custody, control or use of the property by the recipient is affected by an eligible agreement entered into in association with the making or receipt of the gift;

the value of the gift is the value worked out under subsection (14), reduced by such amount as the Commissioner considers reasonable having regard to the effect on the value of the gift of those terms and conditions or of that eligible agreement.

Apportionment of deduction under subsection (6), (7) or (8)-joint ownership

"(16) If:

(a) a taxpayer (the 'first taxpayer') owns property jointly with one or more other taxpayers; and

(b) the owners make a gift of the property; and

(c) assuming that:

(i) the property had been owned by the first taxpayer alone; and

(ii) the gift had been made by the first taxpayer;

the gift would have been an allowable deduction under subsection (6), (7) or (8);

the first taxpayer is entitled to an allowable deduction of so much of the amount of the deduction that would have been allowable as mentioned in paragraph (c) as the Commissioner considers reasonable having regard to the interest of the taxpayer in the property.

Value of property for the purposes of subsection (9)

"(17) For the purposes of subsection (9), the value of a contribution of property is whichever is the lesser of:

(a) the value of the property at the time of the contribution; or

(b) the amount paid by the taxpayer for the property.

Approval of valuer

"(18) The Secretary to the Department of the Arts and Administrative Services may, by signed instrument, approve a person as a valuer in relation to a particular kind of property. In deciding whether to give an approval, the Secretary to that Department must have regard to:

(a) the person's qualifications, experience and knowledge in relation to the valuation of property of that kind; and

(b) the person's knowledge of current market values of property of that kind; and

(c) the person's standing in the professional community; and

(d) any other matters that the Secretary to that Department considers relevant.

Approval of organisations for the purposes of eligible funds declaration

"(19) The Minister for Foreign Affairs may, by signed instrument, approve an organisation as an approved organisation for the purposes of subsection (21).

Certification of country for the purposes of eligible funds declaration

"(20) The Minister for Foreign Affairs may, by signed instrument, certify a country to be a developing country for the purposes of subsection (21).

Declaration of eligible funds

"(21) If the Treasurer is satisfied that a fund:

(a) is a fund established by an approved organisation (whether or not the organisation was an approved organisation at the time when the fund was established); and

(b) is exclusively for the relief of persons in a certified country or certified countries (whether or not that country was a certified country, or those countries were certified countries, at the time when the fund was established);

the Treasurer may, by notice in the Gazette, declare it to be an eligible fund for the purposes of item 9.1.1 of table 9 in subsection (4).

Eligible funds declaration-effective date

"(22) A notice under subsection (21) must specify the date on which the notice has effect. The date must not be earlier than the date on which the notice is published in the Gazette.

Revocation of eligible funds declaration

"(23) The Treasurer may, by notice in the Gazette, revoke a declaration under subsection (21). The notice of revocation must specify the date on which it has effect. The date of effect must not be earlier than the date on which the notice of revocation is published in the Gazette.

Approval of marriage guidance organisations

"(24) If the Attorney-General is satisfied that:

(a) an organisation, or a branch or a section of an organisation, is willing and able to engage in marriage guidance; and

(b) marriage guidance constitutes, or will constitute, the whole or the major part of the activities of the organisation, branch or section, as the case may be;

the Attorney-General may, by signed instrument, approve the organisation, branch or section, as the case may be, for the purposes of item 8.1.1 of table 8 in subsection (4).

Special conditions applicable to gifts made to certain environmental bodies

"(25) The following are the special conditions mentioned in various items in table 6 in subsection (4):

(a) at the time the gift is made, the institution must have agreed to give to the Department of the Environment, Sport and Territories, within a reasonable period after the end of the financial year in which the gift was made, statistical data about gifts made to the institution during the financial year;

(b) at the time the gift is made, the institution must have a policy of not acting as a mere conduit for the donation of money or property to other institutions, bodies or persons.

Definitions

"(26) In this section:

'approved organisation' means an organisation approved under subsection (19);

'approved valuer', in relation to a particular kind of property, means a person in respect of whom there is in force under subsection (18) an approval of the person as a valuer in relation to that kind of property;

'certified country' means a country certified under subsection (20) to be a developing country for the purposes of this section;

'certified facilities', in relation to a college or institution, means facilities (including residential accommodation) in respect of which the Minister for Employment, Education and Training has certified, by signed instrument, that he or she is satisfied are, or are to be, used wholly or principally for certified purposes of the college or institution;

'certified purposes', in relation to a college or institution, means purposes of the college or institution that have been certified by the Minister for Employment, Education and Training, by signed instrument, to relate exclusively to tertiary education;

'eligible agreement' means an agreement, arrangement or understanding:

(a) whether formal or informal; and

(b) whether express or implied; and

(c) whether or not enforceable by legal proceedings (whether or not the agreement, arrangement or understanding was intended to be so enforceable);

'eligible rural school hostel building' means a building where:

(a) the building is used, or to be used, solely or principally as a residential accommodation for students whose usual place of residence is in a rural area and who are undertaking:

(i) primary or secondary education courses; or

(ii) special education programs for children with disabilities;

at a school or schools in the same locality as the residential accommodation; and

(b) the capital or recurrent costs of the school or schools are funded (in whole or in part) by the Commonwealth, a State or a Territory; and

(c) the residential accommodation is provided by:

(i) the Commonwealth, a State or a Territory; or

(ii) a public authority; or

(iii) a company that:

(A) is not carried on for the purposes of profit or gain to its individual members; and

(B) is, by the terms of the company's constituent document, prohibited from making any distribution, whether in money, property or otherwise, to its members;

'property' does not include money;

'value', in relation to money, means the amount of money.".


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