Commonwealth Numbered Acts Commonwealth Numbered ActsPart 1 -- Public ancillary funds
A New Tax System (Australian Business Number) Act 1999
1 Paragraph 26(3)(ga)
After "section 426-65", insert ", 426-104".
Income Tax Assessment Act 1997
2 Subsection 30-15(2) (cell at table item 2, column headed "Recipient")
Omit "A public fund, or a * private ancillary fund,", substitute "An * ancillary fund".
3 Subsection 30-15(2) (cell at table item 2, column headed "Special conditions")
Before "fund" (wherever occurring), insert "ancillary".
4 Paragraph 30-125(1)(d)
Omit "a * private ancillary fund", substitute "an * ancillary fund".
5 Subparagraph 30-125(1)(d)(i)
Omit " * private ancillary fund guidelines", substitute " * public ancillary fund guidelines or the * private ancillary fund guidelines (whichever are applicable)".
6 Paragraph 31-10(1)(b)
Omit "a public fund, or a * private ancillary fund,", substitute "an * ancillary fund".
7 Subsection 995-1(1)
Insert:
"ancillary fund" means:
(a) a * public ancillary fund; or
(b) a * private ancillary fund.
8 Subsection 995-1(1)
Insert:
"public ancillary fund" has the meaning given by section 426-102 in Schedule 1 to the Taxation Administration Act 1953 .
9 Subsection 995-1(1)
Insert:
"public ancillary fund guidelines" has the meaning given by section 426-103 in Schedule 1 to the Taxation Administration Act 1953 .
Taxation Administration Act 1953
10 Subsection 355-65(8) in Schedule 1 (table item 6, column headed "and the record or disclosure ... ")
Omit "private ancillary fund", substitute " * ancillary fund".
11 Section 426-1 in Schedule 1
Omit:
Subdivision 426-D deals with a type of private philanthropic trust fund known as a private ancillary fund .
substitute:
Subdivision 426-D deals with types of philanthropic trust funds known as public ancillary funds and private ancillary funds .
12 Subdivision 426-D in Schedule 1 (heading)
Repeal the heading, substitute:
Subdivision 426-D -- Public and private ancillary funds
13 Section 426-100 in Schedule 1
Omit:
This Subdivision deals with a type of private philanthropic trust fund known as a private ancillary fund .
substitute:
This Subdivision deals with types of philanthropic trust funds known as public ancillary funds and private ancillary funds .
14 Section 426-100 in Schedule 1
Omit "when private", substitute "when".
15 Section 426-100 in Schedule 1
Omit "private ancillary fund guidelines", substitute "public ancillary fund guidelines or private ancillary fund guidelines (whichever are applicable)".
16 Before the group heading before section 426-105 in Schedule 1
Insert:
426-102 Public ancillary funds
(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 is prescribed by the regulations for the purposes of this subparagraph; and
(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).
(2) A trustee may revoke an agreement mentioned in paragraph (1)(b) only by giving the revocation to the Commissioner in the * approved form.
(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.
426-103 Public ancillary fund guidelines
The Minister must, by legislative instrument, formulate guidelines (the public ancillary fund guidelines ) setting out:
(a) rules that * public ancillary funds and their trustees must comply with if the funds are to be, or are to remain, endorsed as * deductible gift recipients; and
(b) the amount of the administrative penalty, or how to work out the amount of the administrative penalty, under subsection 426-120(1) in relation to public ancillary funds.
426-104 Australian Business Register must show public ancillary fund status
(1) If a * public ancillary fund has an * ABN, the * Australian Business Registrar may enter in the * Australian Business Register in relation to the fund a statement that it is a public ancillary fund.
Note 1: An entry (or lack of entry) of a statement required by this section does not affect whether a trust is a public ancillary fund.
Note 2: The Australian Business Register will also show if a public ancillary fund is endorsed as a deductible gift recipient: see section 30-229 of the Income Tax Assessment Act 1997 .
(2) The * Australian Business Registrar must take reasonable steps to ensure that a statement appearing in the * Australian Business Register under this section is true. For this purpose, the Registrar may:
(a) change the statement; or
(b) remove the statement from the Register if the statement is not true.
17 At the end of paragraph 426-110(b) in Schedule 1
Add "in relation to private ancillary funds".
18 Section 426-120 in Schedule 1 (heading)
Repeal the heading, substitute:
426-120 Administrative penalties for trustees of ancillary funds
19 Paragraph 426-120(1)(a) in Schedule 1
Omit "a * private ancillary fund", substitute "an * ancillary fund".
20 Subparagraph 426-120(2)(b)(ii) in Schedule 1
Omit "not a registered trustee company", substitute "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".
21 Paragraph 426-120(3)(a) in Schedule 1
Repeal the paragraph, substitute:
(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
22 Subsection 426-120(3) in Schedule 1
Omit "private ancillary fund guidelines may", substitute "guidelines may".
23 Subsection 426-125(1) in Schedule 1
Omit "a * private ancillary fund", substitute "an * ancillary fund".
24 Paragraph 426-125(1)(a) in Schedule 1
Repeal the paragraph, substitute:
(a) the * public ancillary fund guidelines or the * private ancillary fund guidelines (whichever are applicable); or
25 Subsection 426-125(6) in Schedule 1
Omit "a * private ancillary fund", substitute "an * ancillary fund".
26 Paragraph 426-125(6)(a) in Schedule 1
Repeal the paragraph, substitute:
(a) the * public ancillary fund guidelines or the * private ancillary fund guidelines (whichever are applicable); or
27 Subsections 426-130(1) and (2) in Schedule 1
Omit "a * private ancillary fund", substitute "an * ancillary fund".
28 Subsection 426-130(5) in Schedule 1
Omit "paragraph 426-105(1)(b), agreed to comply with the rules in the * private ancillary fund guidelines,", substitute "paragraph 426-102(1)(b) or 426-105(1)(b), agreed to comply with the rules in the * public ancillary fund guidelines or the * private ancillary fund guidelines (whichever are applicable)".
29 Paragraph 426-135(1)(b) in Schedule 1
Omit " * private ancillary fund's", substitute " * ancillary fund's".
30 Subsections 426-135(2) and 426-150(1) in Schedule 1
Omit " * private ancillary fund", substitute " * ancillary fund".
31 Subsection 426-150(3) in Schedule 1
Omit "a * private ancillary fund", substitute "an * ancillary fund".
32 Paragraph 426-155(b) in Schedule 1
Omit " * private ancillary fund's", substitute " * ancillary fund's".
33 Subsection 426-160(1) in Schedule 1
Omit " * private ancillary fund", substitute " * ancillary fund".
34 Paragraphs 426-165(1)(a) and (2)(a) in Schedule 1
Omit "a * private ancillary fund", substitute "an * ancillary fund".
35 At the end of Subdivision 426-D in Schedule 1
Add:
Transfers between ancillary funds
426-170 Ancillary funds must not provide funds to other ancillary funds
An * ancillary fund must not provide money, property or benefits to another ancillary fund unless permitted to do so by the * public ancillary fund guidelines or the * private ancillary fund guidelines (whichever are applicable).
Division 2--Amendments commencing on 1 July 2012
Taxation Administration Act 1953
36 Subsection 426-104(1) in Schedule 1
Omit "may", substitute "must".
Division 3--Transitional provisions
37 Definitions
In this Division:
commencement time means the time at which this item commences.
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
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
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
(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.
(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
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.
Income Tax Assessment Act 1936
42 Subsection 6(1) (definition of private ancillary fund )
Repeal the definition.
Note: This item repeals a redundant definition.
Taxation Administration Act 1953
43 Subsection 2(1) (definition of private ancillary fund )
Repeal the definition.
Note: This item repeals a redundant definition.