A New Tax System (Tax Administration) Act 1999 (179 of 1999)

Schedule 7   Endorsement of deductible gift recipients

Income Tax Assessment Act 1997

7   After Subdivision 30-B

Insert:

Subdivision 30-BA - Endorsement of deductible gift recipients

Guide to Subdivision 30-BA

30-115 What this Subdivision is about

This Subdivision sets out rules about endorsement of entities and government entities as deductible gift recipients. Endorsement of an entity described (except by name) in Subdivision 30-A, 30-B or 30-D lets you deduct a gift you make to a fund, authority or institution that is, or is operated by, the entity.

Table of sections

Endorsement as a deductible gift recipient

30-120 Endorsement by Commissioner

30-125 Entitlement to endorsement

30-130 Applying for endorsement

30-135 Dealing with an application for endorsement

30-140 Notifying outcome of application for endorsement

30-145 Date of effect of endorsement

30-150 Review of refusal of endorsement

30-155 Checking entitlement to endorsement

30-160 Telling Commissioner of loss of entitlement to endorsement

30-165 Partnerships and unincorporated bodies

30-170 Revoking endorsement

30-175 Review of revocation of endorsement

Government entities treated like entities

30-180 How this Subdivision applies to government entities

[This is the end of the Guide.]

Endorsement as a deductible gift recipient

30-120 Endorsement by Commissioner

If an entity applies for it, the Commissioner must endorse the entity:

(a) as a *deductible gift recipient, if the entity is entitled to be endorsed as a deductible gift recipient; or

(b) as a *deductible gift recipient for the operation of a fund, authority or institution, if the entity is entitled to be endorsed as a deductible gift recipient for the operation of the fund, authority or institution.

30-125 Entitlement to endorsement

Endorsement of an entity that is a fund, authority or institution

(1) An entity is entitled to be endorsed as a *deductible gift recipient if the entity:

(a) has an *ABN; and

(b) is a fund, authority or institution that:

(i) is described (but not by name) in item 1, 2 or 4 of the table in section 30-15; and

(ii) is not described by name in Subdivision 30-B if it is described in item 1 of that table; and

(iii) meets the relevant conditions (if any) identified in the column headed "Special conditions" of the item of that table in which it is described; and

(c) meets the requirements of subsections (4), (5) and (6).

Endorsement of an entity for operating a fund, authority etc.

(2) An entity is entitled to be endorsed as a *deductible gift recipient for the operation of a fund, authority or institution that is described (but not by name) in item 1, 2 or 4 of the table in section 30-15 and is not described by name in Subdivision 30-B if:

(a) the entity has an *ABN; and

(b) the entity:

(i) legally owns the fund; or

(ii) includes the authority or institution; and

(c) the fund, authority or institution meets the relevant conditions (if any) identified in the column headed "Special conditions" of that item; and

(d) the entity meets the requirements of subsections (4), (5) and (6).

Relevant special conditions in table in section 30-15

(3) To avoid doubt, a condition requiring the fund, authority or institution to meet the requirements of section 30-17 is not a relevant condition for the purposes of subparagraph (1)(b)(iii) or paragraph (2)(c).

Note: Section 30-17 requires the entity to be endorsed under this Subdivision as a deductible gift recipient.

Maintaining gift fund

(4) The entity must maintain for the principal purpose of the fund, authority or institution a fund (the gift fund ):

(a) to which gifts of money or property for that purpose are to be made; and

(b) to which any money received by the entity because of such gifts is to be credited; and

(c) that does not receive any other money or property.

Limits on use of gift fund

(5) The entity must use the following only for the principal purpose of the fund, authority or institution:

(a) gifts made to the gift fund;

(b) any money received because of such gifts.

Transfer of assets from gift fund

(6) A law (outside this Subdivision), a document constituting the entity or rules governing the entity's activities must require the entity to transfer, at the first occurrence of an event described in subsection (7), any surplus assets of the gift fund to a fund, authority or institution gifts to which can be deducted under this Division.

Events requiring transfer

(7) The events are:

(a) the winding up of the gift fund; and

(b) if the entity is endorsed because of a fund, authority or institution - the revocation of the entity's endorsement under this Subdivision relating to the fund, authority or institution.

Note 1: There are 2 ways an entity can be endorsed because of a fund, authority or institution. An entity can be endorsed either because it is a fund, authority or institution or because it operates a fund, authority or institution.

Note 2: Section 30-170 deals with revocation of endorsement.

30-130 Applying for endorsement

(1) An entity may apply to the Commissioner for endorsement.

(2) The application:

(a) must be in a form approved by the Commissioner; and

(b) must be signed for the entity, or include the entity's *electronic signature if the application is *lodged electronically; and

(c) must be lodged at, or posted to, an office or facility designated by the Commissioner as a receiving centre for applications of that kind; and

(d) may be lodged electronically.

Note: The Commissioner could approve a form that is part of an application form for an ABN.

30-135 Dealing with an application for endorsement

Requesting further information or documents

(1) The Commissioner may request an applicant to give the Commissioner specified information, or a specified document, the Commissioner needs to decide whether the applicant is entitled to endorsement unless the information or document is given.

Treating application as being refused

(2) After the time worked out under subsection (3), the applicant may give the Commissioner written notice that the applicant wishes to treat the application as having been refused, if the Commissioner has not given the applicant before that time written notice that the Commissioner endorses or refuses to endorse the applicant.

Note: Section 30-140 requires the Commissioner to give the applicant written notice if the Commissioner endorses or refuses to endorse the applicant.

(3) The time is the end of the 60th day after the application was made. However, if before that time the Commissioner requests the applicant under subsection (1) to give information or a document, the time is the later of the following (or either of them if they are the same):

(a) the end of the 28th day after the last day on which the applicant gives the Commissioner information or a document he or she has requested;

(b) the end of the 60th day after the application was made.

(4) If the applicant gives notice under subsection (2), section 30-150 operates as if the Commissioner had refused the application on the day on which the notice is given.

Note: Section 30-150 lets the applicant object against refusal of an application in the manner set out in Part IVC of the Taxation Administration Act 1953. That Part provides for review of the refusal objected against.

(5) The notice given by the applicant:

(a) may be *lodged electronically; and

(b) must be signed for the applicant, or include the applicant's *electronic signature if the application is *lodged electronically.

30-140 Notifying outcome of application for endorsement

(1) The Commissioner must give the applicant written notice if:

(a) the Commissioner endorses the applicant; or

(b) the Commissioner refuses to endorse the applicant.

(2) The Commissioner may give the notice by way of electronic transmission. This does not limit the ways in which the Commissioner may give the notice.

30-145 Date of effect of endorsement

(1) The endorsement has effect from a date specified by the Commissioner.

(2) The date specified may be any date (including a date before the application for endorsement was made and a date before the applicant had an *ABN).

Note: An entity may fail to apply for endorsement by 30 June 2000. The Commissioner may endorse an application by such an entity from 1 July 2000.

30-150 Review of refusal of endorsement

If the applicant is dissatisfied with the Commissioner's refusal to endorse the applicant in accordance with the application, the applicant may object against the refusal in the manner set out in Part IVC of the Taxation Administration Act 1953.

Note: That Part provides for review of the refusal objected against.

30-155 Checking entitlement to endorsement

(1) The Commissioner may request an entity that is endorsed to give the Commissioner information or a document that is relevant to the entity's entitlement to endorsement. The entity must comply with the request.

Note 1: Section 30-125 sets out the conditions for an entity to be entitled to be endorsed.

Note 2: This Act is a taxation law for the purposes of the Taxation Administration Act 1953. Failure to comply with this subsection is an offence against section 8C of that Act. Also, the Commissioner may revoke the endorsement of the entity under section 30-170 if it fails to comply with this subsection.

Note 3: Section 30-165 modifies the way this subsection operates in relation to partnerships and unincorporated bodies.

(2) The request:

(a) is to be made by notice in writing to the entity; and

(b) may ask the entity to give the information in writing; and

(c) must specify:

(i) the information or document the entity is to give; and

(ii) the period within which the entity is to give the information or document.

The period specified under subparagraph (c)(ii) must end at least 28 days after the notice is given.

(3) The Commissioner may give the notice by way of electronic transmission. This does not limit the ways in which the Commissioner may give the notice.

(4) If the request is for the entity to give information in writing, the document setting out the information:

(a) must be given to the Commissioner; and

(b) may be *lodged electronically; and

(c) must be signed for the entity, or include the entity's *electronic signature if the document is lodged electronically.

30-160 Telling Commissioner of loss of entitlement to endorsement

(1) Before, or as soon as practicable after, an entity that is endorsed ceases to be entitled to be endorsed, the entity must give the Commissioner written notice of the cessation.

Note 1: Section 30-125 sets out when an entity is entitled to be endorsed.

Note 2: This Act is a taxation law for the purposes of the Taxation Administration Act 1953. Failure to comply with this subsection is an offence against section 8C of that Act.

Note 3: Section 30-165 modifies the way this subsection operates in relation to partnerships and unincorporated bodies.

(2) The notice:

(a) may be *lodged electronically; and

(b) must be signed for the entity, or include the entity's *electronic signature if the document is lodged electronically.

(3) Subsection (1) does not apply to an entitlement to endorsement ceasing because the entity ceases to have an *ABN.

30-165 Partnerships and unincorporated bodies

Application to partnerships

(1) If, apart from this subsection, section 30-155 or 30-160 would impose an obligation on a partnership, the obligation is imposed on each partner, but may be discharged by any of the partners.

Application to unincorporated bodies

(2) If, apart from this subsection, section 30-155 or 30-160 would impose an obligation on an unincorporated association or body, the obligation is imposed on each member of the committee of management of the association or body, but may be discharged by any of the members of the committee.

Defences for partners and members of committee of management

(3) In a prosecution of a person for an offence against section 8C of the Taxation Administration Act 1953 because of subsection (1) or (2), it is a defence if the person proves that the person:

(a) did not aid, abet, counsel or procure the act or omission because of which the offence is taken to have been committed; and

(b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission because of which the offence is taken to have been committed.

30-170 Revoking endorsement

(1) The Commissioner may revoke the endorsement of an entity if:

(a) the entity is not entitled to be endorsed; or

(b) the Commissioner has requested the entity under section 30-155 to provide information or a document that is relevant to its entitlement to endorsement and the entity has not provided the requested information or document within the time specified in the request; or

(c) the entity has contravened Subdivision 30-CA (which requires the entity to ensure that certain things are stated in any receipts it issues for certain gifts).

Note: Section 30-125 sets out the conditions for an entity to be entitled to be endorsed.

(2) The revocation has effect from a date specified by the Commissioner (which may be a date before the Commissioner decided to revoke the endorsement).

(3) However, if the Commissioner revokes the endorsement because the entity is not entitled to it, the Commissioner must not specify a date before the date on which the entity first ceased to be entitled.

(4) The Commissioner must give the entity written notice if the Commissioner revokes its endorsement.

(5) The Commissioner may give the notice by way of electronic transmission. This does not limit the ways in which the Commissioner may give the notice.

30-175 Review of revocation of endorsement

If the entity is dissatisfied with the revocation of its endorsement, the entity may object against the revocation in the manner set out in Part IVC of the Taxation Administration Act 1953.

Note: That Part provides for review of the revocation objected against.

Government entities treated like entities

30-180 How this Subdivision applies to government entities

(1) The other sections of this Subdivision apply in relation to a *government entity in the same way as they apply in relation to an entity.

(2) Subparagraph 30-125(2)(b)(i) (as applied by this section) operates as if it referred to the *government entity consisting of persons, one or more of whom controlled the fund (instead of referring to the entity legally owning the fund).

(3) If, apart from this subsection, section 30-155 or 30-160 (as applied by this section) would impose an obligation on a *government entity:

(a) that is an unincorporated association or body; and

(b) for whose management a single person is responsible to persons or bodies outside the government entity;

the obligation is imposed on that person.

(4) Subsection (3) has effect despite:

(a) subsection (1); and

(b) subsection 30-165(2) as it applies because of this section.