Commonwealth Numbered Regulations - Explanatory Statements

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INCOME TAX ASSESSMENT AMENDMENT REGULATIONS 2004 (NO. 4) 2004 NO. 330

Subsection 909-1(1) of the Income Tax Assessment Act 1997 (the Act) provides that the Governor-General may make regulations prescribing matters that the Act requires or permits to be prescribed, or are necessary or convenient to prescribe for carrying out or giving effect to the Act.

Subsection 995-1(1) of the Act defines a 'prescribed private fund' as a fund that is prescribed by the regulations for the purposes of the definition, but does not include any fund that has been declared by the Treasurer, in writing, not to be a prescribed private fund.

A prescribed private fund is a fund listed in the table under regulation 995-1.02 of the Income Tax Assessment Regulations 1997 (the Principal Regulations) on and from the date specified in that table.

Each fund is established and maintained for the purpose of providing money, property or benefits to a fund, authority or institution that is listed either by name or by type in a table of recipients for deductible gifts in Subdivision 30B of the Act.

Item 2 in the table to section 30-15 provides that a gift made to a prescribed private fund is deductible where the fund is established and maintained under a will or instrument of trust solely for:

(a)       the purpose of providing money, property or benefits to a fund, authority or institution gifts to which are deductible under item 1 of the table and for any purposes set out in the item of the table in Subdivision 30B that covers the fund, authority or institution; or

(b)       the establishment of such a fund, authority or institution.

The Australian Tax Office assesses funds that wish to be prescribed as 'prescribed private funds' against certain guidelines and then asks the Minister for Revenue and Assistant Treasurer to approve them for prescription in the Principal Regulations. The Minister for Revenue and Assistant Treasurer has approved the changes to the Principal Regulations described below.

The purpose of the Regulations is to amend regulation 995-1.02 to take account of changes approved by the Minister since 4 June 2003, when that regulation was last updated.

The Regulations give effect to name changes of prescribed private funds, by listing them under their new names and prescribing a period of effect for the funds listed under the old names in regulation 995-1.02.

The Regulations also correct errors in the names of prescribed private funds by replacing the incorrect name with the correct name, with the same date of effect, in regulation 995-1.02.

The Regulations also prescribe 83 new funds for the purposes of the definition of 'prescribed private fund' in regulation 995-1.02. The funds are listed in the Attachment. Each of the funds listed is a prescribed private fund on and from the date of effect specified in the Regulations.

The Act specifies no conditions that need to be met before the power to make the proposed Regulations may be exercised.

The Regulations commence on the date of their notification in the Gazette. However, they provide for different dates of effect, namely the dates of approval by the Government.

While these dates are earlier than the date of gazettal of the Regulations, subsection 48(2) of the Acts Interpretation Act 1901 is not contravened. Subsection 48(2) prohibits the retrospective operation of regulations that adversely affect the rights of, or impose liabilities upon, a person. The Regulations are beneficial to the institutions and funds concerned and to taxpayers making donations to them.

The Regulations are administrative in nature, rather than regulatory, so are of a minor or machinery of government nature and do not substantially alter existing arrangements. Accordingly, a Regulation Impact Statement is not mandatory and has not been prepared.

ATTACHMENT

Details of the proposed Income Tax Assessment Amendment Regulations 2004 (No. 4)

Regulation 1:       Names the regulations as the Income Tax Assessment Amendment Regulations 2004 (No. 4).

Regulation 2:       Provides that the regulations commence on the date of their notification in the Gazette.

Regulation 3:       Provides that Schedule 1 amends the Income Tax Assessment Regulations 1997.

Schedule 1:       Amendments

Item 1 amends the period of effect of the prescribed private fund listed at item 33 of regulation 995-1.02 to give effect to the fund's approved name change. The name 'Clipsal Fund' was formally changed on 25 November 2003 to 'The Gerard Fund'. The new name is reflected in new item 143 of regulation 995-1.02.

Item 2 amends the period of effect of the prescribed private fund listed at item 60 of regulation 995-1.02 to give effect to the fund's approved name change. The name 'JB Were Foundation' was formally changed on 12 December 2003 to 'Goldman Sachs JBWere Foundation'. The new name is reflected in new item 144 of regulation 995-1.02.

Item 3 removes the prescribed private fund 'MCS Charitable Foundation' listed at item 67 of regulation 995-1.02. The trustees of the Foundation resolved to wind up the trust on 5 January 2004. The Foundation is to be omitted rather than a period of operation stated because the Trustees stated that the MCS Charitable Foundation never operated.

Items 4, 6 and 7 substitute corrected fund names in the regulations at items 109, 127 and 138. The fund names were incorrectly cited as a result of minor technical errors in the transcribing of the items.

Item 5 amends the period of effect of the prescribed private fund listed at item 112 of regulation 995-1.02 to give effect to the fund's approved name change. The name 'The Bell Shakespeare Company Foundation' was formally changed on 20 April 2004 to 'The Bell Shakespeare Development Trust'. The new name is reflected in new item 162 of regulation 995-1.02.

Item 8 inserts the names and dates of effect of funds prescribed as prescribed private funds into regulation 995-1.02. The funds, their respective item numbers, and the dates of effect of their listing are:

143	The Gerard Fund	25 November 2003
144	Goldman Sachs JBWere Foundation	12 December 2003
145	Greenlight Foundation	3 February 2004
146	Horwath Charitable Trust	3 February 2004
147	Maple-Brown Family Charitable Trust	3 February 2004
148	Matana Foundation for Young People	3 February 2004
149	McGrath Family Foundation	3 February 2004
150	Sabemo Foundation	3 February 2004
151	Southern Paradise Foundation	3 February 2004
152	The JEM Foundation	3 February 2004
153	The Persephone Foundation	3 February 2004
154	Annieandjohnpaterson Foundation	10 February 2004
155	Neil & Norma Hill Foundation	10 February 2004
156	Pierce Armstrong Trust	10 February 2004
157	Rosella Foundation	10 February 2004
158	Sherman Foundation	10 February 2004
159	The Ernst & Young Foundation	10 February 2004
160	The MJFS Foundation	10 February 2004
161	The Shane Warne Foundation	10 February 2004
162	The Bell Shakespeare Development Trust	20 April 2004
163	Count Charitable Foundation	24 April 2004
164	Ilhan Foundation	24 April 2004
165	Kids and Families Foundation	24 April 2004
166	Purves Private Fund	24 April 2004
167	Rees Jones Foundation	24 April 2004
168	The ACCA Foundation	24 April 2004
169	The Allison Foundation	24 April 2004
170	The Besen Family Foundation	24 April 2004
171	The Boyd Group Foundation	24 April 2004
172	Acuity Evangelical Foundation Prescribed Fund	16 June 2004
173	Bamaga Foundation	16 June 2004
174	Becher Foundation	16 June 2004
175	Belalberi Foundation	16 June 2004
176	Bradley McKnight Foundation	16 June 2004
177	Donkey Wheel Fund	16 June 2004
178	Efron Family Foundation	16 June 2004
179	Fay Fuller Foundation	16 June 2004
180	Fouress Foundation	16 June 2004
181	Goodman Family Foundation	16 June 2004
182	Grosman Family Foundation	16 June 2004
183	H & K Johnston Family Foundation	16 June 2004
184	Heymanson Family Foundation	16 June 2004
185	Kel & Rosie Day Foundation	16 June 2004
186	Liangrove Foundation	16 June 2004
187	Mark Francis Butler Charity Foundation	16 June 2004
188	McLeod Family Foundation	16 June 2004
189	RobMeree Foundation	16 June 2004
190	Schudmak Family Foundation	16 June 2004
191	Steven Moss Foundation	16 June 2004
192	The Agape Charitable Fund	16 June 2004
193	The Brenda Shanahan Charitable Foundation	16 June 2004
194	The David Harold Tribe Charitable Foundation	16 June 2004
195	The Helen Lyons Foundation	16 June 2004
196	The Keir Foundation	16 June 2004
197	The Macintosh Foundation	16 June 2004
198	The Malcolm Robertson Foundation	16 June 2004
199	The Moore Family Philanthropic Foundation	16 June 2004
200	The Muffin Foundation	16 June 2004
201	The Neilson Foundation	16 June 2004
202	The Ray and Margaret Wilson Foundation	16 June 2004
203	The White Foundation	16 June 2004
204	Vernon Foundation	16 June 2004
205	Wolanski Foundation	16 June 2004
206	Aarons Foundation	17 June 2004
207	Costa Family Foundation	17 June 2004
208	Debbie Stach Memorial Fund	17 June 2004
209	Gleeson/O'Keefe Foundation	17 June 2004
210	Hear & Say Foundation	17 June 2004
211	Herbert And Valmae Freilich Prescribed Private Fund	17 June 2004
212	Molloy Family Foundation	17 June 2004
213	Montgomery Foundation	17 June 2004
214	Newcastle Permanent Charitable Foundation	17 June 2004
215	Next Generation Prescribed Private Fund	17 June 2004
216	Phil Little Design Foundation	17 June 2004
217	Pixifoto Foundation	17 June 2004
218	Skipper-Jacobs Charitable Trust	17 June 2004
219	Spotlight Charitable Foundation	17 June 2004
220	The Bill & Patricia Ritchie Foundation	17 June 2004
221	The Horizon Foundation	17 June 2004
222	The Nicol Foundation	17 June 2004
223	The Orica Community Foundation	17 June 2004
224	The Skellern Family Foundation	17 June 2004
225	The Springett Family Foundation	17 June 2004
226	Vincent Fairfax Ethics in Leadership Foundation	17 June 2004
227	WJ & MS Hughes Foundation	17 June 2004
228	Wythenshawe Foundation	17 June 2004