Taxation Administration Act 1953

SCHEDULE 1 - COLLECTION AND RECOVERY OF INCOME TAX AND OTHER LIABILITIES

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Note: See section 3AA .

Chapter 5 - Administration

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PART 5-35 - REGISTRATION AND SIMILAR PROCESSES FOR VARIOUS TAXES

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History

Part 5-35 inserted by No 95 of 2004. No 95 of 2004, s 3 and Sch 10 item 44, contains the following transitional provision:

44 Transitional - GST and FBT endorsements
(1)
This item applies in relation to an entity if:

(a) immediately before 1 July 2005, the entity was endorsed under section 30-120 or section 50-105 of the Income Tax Assessment Act 1997 ; and

(b) the entity failed to notify the Commissioner in writing before 1 July 2005 that it chose not to have this item apply to it.

(2)
The entity is taken to have made an application to the Commissioner under section 426-15 in Schedule 1 to the Taxation Administration Act 1953 for whichever of these kinds of endorsement is most appropriate for the entity:

(a) endorsement as a charitable institution under subsection 176-1(1) of the A New Tax System (Goods and Services Tax) Act 1999 ;

(b) endorsement as a trustee of a charitable fund under subsection 176-5(1) of the A New Tax System (Goods and Services Tax) Act 1999 .

(3)
The entity is taken to have made an application to the Commissioner under section 426-16 in Schedule 1 to the Taxation Administration Act 1953 for whichever of these kinds of endorsement is most appropriate for the entity:

(a) endorsement as a public benevolent institution under subsection 123C(1) of the Fringe Benefits Tax Assessment Act 1986 ;

(b) endorsement for the operation of a public benevolent institution under subsection 123C(3) of the Fringe Benefits Tax Assessment Act 1986 ;

(c) endorsement as a health promotion charity under subsection 123D(1) of the Fringe Benefits Tax Assessment Act 1986 ;

(d) endorsement under subsection 123E(1) of the Fringe Benefits Tax Assessment Act 1986 as a charitable institution covered by paragraph 65J(1)(baa) of that Act.

Division 426 - Process of endorsing charities and other entities

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Subdivision 426-D - Ancillary and community charity trust funds

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History

Subdiv 426-D heading substituted by No 52 of 2024, s 3 and Sch 3 item 9, effective 29 June 2024. The heading formerly read:

Subdivision 426-D - Public and private ancillary funds

Subdiv 426-D heading substituted by No 147 of 2011, s 3 and Sch 8 item 12, effective 1 January 2012. For transitional provisions, see note under s 426-102. The heading formerly read:

Subdivision 426-D - Private ancillary funds

Subdiv 426-D inserted by No 88 of 2009, s 3 and Sch 2 item 22, effective 1 October 2009. No 88 of 2009, s 3 and Sch 2 items 25 to 31 contain the following transitional provisions:

Division 1 - Preliminary
25 Definitions
25
In this Part:
commencement time
means the time at which this item commences. [ CCH Note: Commencement was 1 October 2009.]

constitutional corporation
has the meaning given by the Income Tax Assessment Act 1997 .

deductible gift recipient
has the meaning given by the Income Tax Assessment Act 1997 .

prescribed private fund
has the meaning given by the Income Tax Assessment Act 1997 (as in force just before the commencement time).

private ancillary fund
has the meaning given by section 426-105 in Schedule 1 to the Taxation Administration Act 1953 .

private ancillary fund guidelines
has the meaning given by section 426-110 in Schedule 1 to the Taxation Administration Act 1953 .

Division 2 - Declared prescribed private funds
26 Transitional - prescribed private fund declarations
26(1)
The Minister may, by legislative instrument, declare a trust to be a prescribed private fund.

26(2)
Despite subsection 12(2) of the Legislative Instruments Act 2003 , the declaration has effect during the period:

(a) starting at the time specified in the declaration, which must be before the commencement time; and

(b) ending just before the commencement time.

Division 3 - Transitional private ancillary funds
27 Application of Division
27
This Division applies to a trust if, just before the commencement time, the trust was a prescribed private fund (whether or not because of a declaration made under item 26). 28 Transitional - trustees need not be constitutional corporations
28
Paragraph 426-105(1)(a) (trustees of private ancillary funds must be constitutional corporations) and sections 426-125 to 426-165 (Suspension and removal of trustees) in Schedule 1 to the Taxation Administration Act 1953 do not apply to the trust during the period:

(a) starting at the commencement time; and

(b) ending at the earlier of the following:

(i) the time (at or after the commencement time) the trust first satisfies the requirements of that paragraph (disregarding this item);

(ii) the first time any of the trustees of the trust revoke the agreement mentioned in item 29 in accordance with subsection 426-105(2) in that Schedule.
29 Transitional - agreement to comply with private ancillary fund guidelines
29(1)
For the purposes of Subdivision 426-D in Schedule 1 to the Taxation Administration Act 1953 , each of the trustees of the trust is taken to have agreed, at the commencement time and in accordance with paragraph 426-105(1)(b) in that Schedule, to comply with the rules in the private ancillary fund guidelines, as in force from time to time.

29(2)
To avoid doubt, subitem (1) does not prevent a trustee from revoking that agreement at a later time as mentioned in paragraph 426-105(1)(c) in that Schedule.
30 Transitional - endorsement as a deductible gift recipient
30(1)
The trust is taken to have been endorsed as a deductible gift recipient under section 30-120 of the Income Tax Assessment Act 1997 at the commencement time.

30(2)
To avoid doubt, subitem (1) does not prevent the Commissioner from revoking that endorsement at a later time under section 426-55 in Schedule 1 to the Taxation Administration Act 1953 .
31 Transitional - transfer of property
31
For the purposes of item 2 of the column headed " Recipient " of the table in subsection 30-15(2) of the Income Tax Assessment Act 1997 , disregard a transfer of all of the property of the trust to another private ancillary fund if:

(a) the other fund is a deductible gift recipient; and

(b) every trustee of the other fund is a constitutional corporation; and

(c) the transfer happens during the period mentioned in item 28.

Public ancillary funds

SECTION 426-102 PUBLIC ANCILLARY FUNDS

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426-102(1)
A trust is a public ancillary fund if:

(a) at least one of the following subparagraphs applies:

(i) each trustee of the trust is a *constitutional corporation;

(ii) the only trustee of the trust is the Public Trustee of a State or Territory, or each trustee of the trust is prescribed by the regulations for the purposes of this subparagraph; and

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(b) each trustee of the trust has agreed, in the *approved form given to the Commissioner, to comply with the rules in the *public ancillary fund guidelines, as in force from time to time; and

(c) none of the trustees has revoked that agreement in accordance with subsection (2).

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426-102(2)
A trustee may revoke an agreement mentioned in paragraph (1)(b) only by giving the revocation to the Commissioner in the *approved form.

426-102(3)
Sections 426-125 to 426-165 do not apply to a *public ancillary fund if subparagraph (1)(a)(ii) of this section applies to the fund.

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History

S 426-102 inserted by No 147 of 2011, s 3 and Sch 8 item 16, effective 1 January 2012. No 147 of 2011, s 3 and Sch 8 items 37 to 41 contain the following transitional provisions:

Division 3 - Transitional provisions
37 Definitions
37
In this Division:
commencement time
means the time at which this item commences. [ CCH Note: Commencement was 1 January 2012.]

constitutional corporation
has the meaning given by the Income Tax Assessment Act 1997 .

private ancillary fund
has the meaning given by section 426-105 in Schedule 1 to the Taxation Administration Act 1953 .

public ancillary fund
has the meaning given by section 426-102 in Schedule 1 to the Taxation Administration Act 1953 .

public ancillary fund guidelines
has the meaning given by section 426-103 in Schedule 1 to the Taxation Administration Act 1953 .
38 Application of Division
38
This Division applies to a trust if, just before the commencement time, the trust was:

(a) a public fund covered by item 2 of the table in subsection 30-15(2) of the Income Tax Assessment Act 1997 ; and

(b) endorsed as a deductible gift recipient under section 30-120 of that Act; and

(c) not a private ancillary fund. 39 Transitional provision - trustees need not be constitutional corporations
39
Paragraph 426-102(1)(a) (trustees of public ancillary funds must be constitutional corporations, Public Trustees or prescribed) and sections 426-125 to 426-165 (Suspension and removal of trustees) in Schedule 1 to the Taxation Administration Act 1953 do not apply to the trust during the period:

(a) starting at the commencement time; and

(b) ending at the earlier of the following:

(i) the time (at or after the commencement time) the trust first satisfies the requirements of that paragraph (disregarding this item);

(ii) the first time any of the trustees of the trust revoke the agreement mentioned in item 40 in accordance with subsection 426-102(2) in that Schedule.
40 Transitional provision - agreement to comply with public ancillary fund guidelines
40(1)
For the purposes of Subdivision 426-D in Schedule 1 to the Taxation Administration Act 1953 , each of the trustees of the trust is taken to have agreed, at the commencement time and in accordance with paragraph 426-102(1)(b) in that Schedule, to comply with the rules in the public ancillary fund guidelines, as in force from time to time.

40(2)
To avoid doubt, subitem (1) does not prevent a trustee from revoking that agreement at a later time as mentioned in paragraph 426-102(1)(c) in that Schedule.
41 Transitional provision - transfer of property
41
For the purposes of item 2 of the column headed " Recipient " of the table in subsection 30-15(2) of the Income Tax Assessment Act 1997 , disregard a transfer of all of the property of the trust to another public ancillary fund if:

(a) the other fund is a deductible gift recipient; and

(b) at least one of the following subparagraphs applies:

(i) every trustee of the other fund is a *constitutional corporation;

(ii) the only trustee of the other fund is the Public Trustee of a State or Territory, or is prescribed by the regulations for the purposes of subparagraph 426-102(1)(a)(ii) in Schedule 1 to the Taxation Administration Act 1953 ; and

(c) the transfer happens during the period mentioned in item 39.

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