SCHEDULE 1
-
COLLECTION AND RECOVERY OF INCOME TAX AND OTHER LIABILITIES
History
Sch 1 inserted by No 178 of 1999 (as amended by No 179 of 1999 and No 44 of 2000).
Note: See section
3AA
.
Chapter 5
-
Administration
History
Ch 5 title inserted by
No 73 of 2006
, s 3 and Sch 5 item 44, effective 1 July 2006.
PART 5-35
-
REGISTRATION AND SIMILAR PROCESSES FOR VARIOUS TAXES
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
History
Div 426 inserted by No 95 of 2004. For transitional provision, see note under Part
5-35
heading.
Subdivision 426-D
-
Ancillary and community charity trust funds
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.
Administrative penalties
SECTION 426-120
ADMINISTRATIVE PENALTIES FOR TRUSTEES OF ANCILLARY AND COMMUNITY CHARITY TRUST FUNDS
Administrative penalty
426-120(1)
The persons mentioned in subsection
(2)
are jointly and severally liable to an administrative penalty if:
(a)
a trustee of an *ancillary or community charity trust fund holds the fund out as being endorsed, entitled to be endorsed, or entitled to remain endorsed, as a *deductible gift recipient; and
(b)
the fund is not so endorsed or entitled.
Note:
The Commissioner is required to give written notice of the penalty (see section
298-10
).
History
S 426-120(1) amended by No 52 of 2024, s 3 and Sch 3 items 13 and 14, by substituting
"
*ancillary or community charity trust fund
"
for
"
*ancillary fund
"
in para (a) and inserting the note, effective 29 June 2024.
S 426-120(1) amended by No 147 of 2011, s 3 and Sch 8 item 19, by substituting
"
an *ancillary fund
"
for
"
a *private ancillary fund
"
in para (b), effective 1 January 2012. For transitional provisions see note under s 426-102.
426-120(2)
The persons are:
(a)
each person who is a trustee of the fund; and
(b)
each director of each *constitutional corporation that is a trustee of the fund, if:
(i)
any of the penalty cannot reasonably be recovered from the constitutional corporation; and
(ii)
the constitutional corporation is neither a licensed trustee company (within the meaning of the
Corporations Act 2001
) nor the Public Trustee of a State or Territory.
Note:
A person mentioned in paragraph
(2)(a)
may, in certain circumstances, not be a constitutional corporation: see item 28 of Schedule 2 to the
Tax Laws Amendment (2009 Measures No 4) Act 2009
(former prescribed private funds).
History
S 426-120(2) amended by No 76 of 2023, s 3 and Sch 2 item 737, by omitting
"
of Chapter 5D
"
before
"
the
Corporations Act 2001
"
from para (b)(ii), effective 20 October 2023.
S 426-120(2) amended by No 147 of 2011, s 3 and Sch 8 item 20, by substituting
"
neither a licensed trustee company (within the meaning of Chapter 5D of the
Corporations Act 2001
) nor the Public Trustee of a State or Territory
"
for
"
not a registered trustee company
"
in para (b)(ii), effective 1 January 2012. For transitional provisions see note under s 426-102.
426-120(3)
The amount of the penalty is:
(a)
the amount specified in the *applicable trust fund guidelines for the purposes of subsection
(1)
; or
(b)
the amount worked out in accordance with the method specified in the applicable trust fund guidelines for the purposes of subsection
(1)
.
The guidelines may specify different penalties or methods for different circumstances.
History
S 426-120(3) substituted by No 52 of 2024, s 3 and Sch 3 item 15, effective 29 June 2024. S 426-120(3) formerly read:
426-120(3)
The amount of the penalty is:
(a)
the amount specified in the *public ancillary fund guidelines under paragraph 426-103(b), or the *private ancillary fund guidelines under paragraph 426-110(b), whichever are applicable; or
(b)
the amount worked out in accordance with the method specified under that paragraph.
The guidelines may specify different penalties or methods for different circumstances.
S 426-120(3) amended by No 147 of 2011, s 3 and Sch 8 item 21 and 22, by substituting para (a) and substituting
"
guidelines may
"
for
"
private ancillary fund guidelines may
"
, effective 1 January 2012. For transitional provisions see note under s 426-102. Para (a) formerly read:
(a)
the amount specified in the *private ancillary fund guidelines under paragraph
426-110(b)
; or
426-120(4)
The penalty must not be reimbursed from the fund.
Note:
Division
298
in this Schedule contains machinery provisions for administrative penalties.
Defences for directors
426-120(5)
Paragraph
(2)(b)
does not apply to a director if:
(a)
the director was not aware of the holding out mentioned in paragraph
(1)(a)
and it would not have been reasonable to expect the director to have been aware of that holding out; or
(b)
the director took all reasonable steps to ensure that the holding out mentioned in that paragraph did not occur; or
(c)
there were no such steps that the director could have taken.
426-120(6)
In determining what is reasonable for the purposes of paragraph
(5)(a)
,
(b)
or
(c)
, have regard to all relevant circumstances.
426-120(7)
A person who wishes to rely on subsection (5) bears an evidential burden in relation to the matters in that subsection.
Power of courts to grant relief
426-120(8)
Section
1318
of the
Corporations Act 2001
(power of Court to grant relief in case of breach of director
'
s duty) does not apply to a liability of a director under this section.
History
S 426-120 inserted by No 88 of 2009, s 3 and Sch 2 item 22, effective 1 October 2009. For transitional provisions, see note under Subdiv
426-D
heading.
View history note
Hide history note