A NEW TAX SYSTEM (AUSTRALIAN BUSINESS NUMBER) ACT 1999 (ARCHIVE)

PART 4 - RULES FOR INTERPRETING THIS ACT  

Division 14 - Meaning of some important concepts  

SECTION 37 (ARCHIVE)   ENTITY  

37(1)   [Definition]  

Entity means any of the following:

(a) an *individual;

(b) a body corporate;

(c) a corporation sole;

(d) a body politic;

(e) a *partnership;

(f) any other unincorporated association or body of *persons;

(g) a trust;

(h) a *superannuation fund.

Note:

The term entity is used in a number of different but related senses. It covers all kinds of legal person. It also covers groups of legal persons, and other things, that in practice are treated as having a separate identity in the same way as a legal person does.

37(1A)   [Non-entity joint venture]  

Paragraph (1)(f) does not include a *non-entity joint venture.

37(2)   [Trustee]  

The trustee of a trust or of a *superannuation fund is taken to be an entity consisting of the *person who is the trustee, or the persons who are the trustees, at any given time.

Note:

This is because a right or obligation cannot be conferred or imposed on an entity that is not a legal person.

37(3)   [Legal person]  

A legal *person can have a number of different capacities in which the person does things. In each of those capacities, the person is taken to be a different entity.

Example:

In addition to his or her personal capacity, an individual may be:

• sole trustee of one or more trusts; and

• one of a number of trustees of a further trust.

In his or her personal capacity, he or she is one entity. As trustee of each trust, he or she is a different entity. The trustees of the further trust are a different entity again, of which the individual is a member.

37(4)   [Entity]  

If a provision refers to an entity of a particular kind, it refers to the entity in its capacity as that kind of entity, not to that entity in any other capacity.

Example:

A provision that refers to a company does not cover a company in a capacity as trustee, unless it also refers to a trustee.

SECTION 38 (ARCHIVE)   ENTERPRISE  

38(1)   [Definition]  

An enterprise is an activity, or series of activities, done:

(a) in the form of a *business; or

(b) in the form of an adventure or concern in the nature of trade; or

(c) on a regular or continuous basis, in the form of a lease, licence or other grant of an interest in property; or

(d) by the trustee of a fund that is covered by, or by an authority or institution that is covered by, Subdivision 30-B of the *ITAA 1997 and to which deductible gifts can be made; or

(e) by a charitable institution or by a trustee of a charitable fund; or

(f) by a religious institution; or

(g) by the Commonwealth, a State or a Territory, or by a body corporate, or corporation sole, established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or

(h) by a trustee of a fund covered by item 2 of the table in section 30-15 of the ITAA 1997 or of a fund that would be covered by that item if it had an ABN.

38(2)   [Activities not included]  

However, enterprise does not include an activity, or series of activities, done:

(a) by a person as an employee or in connection with earning *withholding payments covered by subsection (3) (unless the activity or series is done in supplying services as the holder of an office that the person has accepted in the course of or in connection with an activity or series of activities of a kind mentioned in subsection (1)); or

Note:

Acts done as mentioned in paragraph (a) will still form part of the activities of the enterprise to which the person provides work or services.

(b) as a private recreational pursuit or hobby; or

(c) by an individual (other than a trustee of a charitable fund, or of a fund covered by item 2 of the table in section 30-15 of the ITAA 1997 or of a fund that would be covered by that item if it had an ABN), or a *partnership (all or most of the members of which are individuals), without a reasonable expectation of profit or gain; or

(d) as a member of a local governing body established by or under a *State law or *Territory law (except a local governing body to which subsection 12-45(3) in Schedule 1 to the Taxation Administration Act 1953 applies).

38(2A)    
For the avoidance of doubt, the fact that activities of an entity are limited to making supplies to members of the entity does not prevent those activities:

(a) being in the form of a *business within the meaning of paragraph (1)(a); or

(b) being in the form of an adventure or concern in the nature of trade within the meaning of paragraph (1)(b).

38(3)   [Withholding payments]  

This subsection covers a *withholding payment covered by any of the provisions in Schedule 1 to the Taxation Administration Act 1953 listed in the table.

Withholding payments covered
Item	Provision	Subject matter
1	Section 12-35	Payment to employee
.
2	Section 12-40	Payment to company director
.
3	Section 12-45	Payment to office holder
.
4	Section 12-60	Payment under labour hire arrangement, or specified by regulations

SECTION 39 (ARCHIVE)  

39   CARRYING ON AN ENTERPRISE IN AUSTRALIA  

SECTION 40 (ARCHIVE)  

40   ELECTRONIC LODGMENT OF DOCUMENTS  
A document is lodged electronically if it is transmitted to the Registrar in an electronic format approved by the Registrar.

Division 15 - The Dictionary  

SECTION 41 (ARCHIVE)  

41   DICTIONARY  

enterprise
has the meaning given by section 38.

entity
has the meaning given by section 37.

lodged electronically
has the meaning given by section 40.