Charities Consultative Committee minutes - 1 November 2010

Charities Consultative Committee minutes - 1 November 2010

Meeting details

Venue:

14.07 Somme-Terrica
ATO Office, Terrica Place
140 Creek Street
Brisbane

   

Date:

1 November 2010

   

Start:

10.00am

Finish:

2.00pm

Chair:

Michael Hardy

   

Contact and Secretariat:

Richard Gates

Contact phone:

Charities Consultative Committee mailbox

Attendees

Father Brian Lucas

Australian Catholic Bishops Conference

Carol Croce

Community Housing Federation of Australia

Tamara Hartwich

Treasury

Peter Kell

Anglicare

Professor Myles McGregor-Lowndes

Centre of Philanthropy & Non-Profit studies QUT

John McIntosh

Salvation Army

Amanda Power

St John Ambulance Australia

David Thompson

Australian Council of Social Services, ACOSS

Joe Zabar

UnitingCare Australia

Trevor Garrett

Chief Executive, New Zealand Charities Commission

Michael Hardy

Assistant Commissioner Parliamentary Business and Corporate Manager: Not For Profit, Government, Trusts & FBT
Small & Medium Enterprises, ATO

Mark Ferguson

ATO

Martyn Lyons

ATO

Tom Lo

ATO

Richard Gates

ATO

Apologies

Greg Smith

National Disability Services

Mike Myers

Community Housing Federation of Australia

Tim Morris-Smith

Mission Australia

Barry Wallet

Independent Schools Council of Australia

Ken Baker

National Disability Services

Jason Aitchison

ATO

Agenda items

Disclaimer

Charities Consultative Committee (CCC) agendas, minutes and related papers are not binding on the Tax Office or any of the other bodies referred to in these papers. While every effort is made to accurately record views expressed, the wording necessarily represents a summary of statements of general position only, and care should be taken in interpreting those statements. These papers reflect the position at the date of release (unless otherwise noted) and readers should note that the position on any issue may subsequently change.

Action item

Review phone calls v audit phone calls

Description

Provide a detailed description of what is said in 'review' phone calls and 'audit' phone calls, that is, what is the timeframe to hear an outcome and what is said about the status of clients.

Responsibility

Stephen Howlin

Due date

There will be an out of session update provided

Action item

Reworded determined market value explanation

Description

Provide some reworded text around determined market value using the cost plus method and send it to members for comment and discussion at next meeting.

Note - if anyone has any goods and services tax (GST) cost plus method examples they are not sure of, please send them to John.

Responsibility

John McIntosh

Due date

Originally due for November CCC meeting - carried over to next meeting

Action item

Colleague feedback

Description

Provide feedback from colleagues about transactions from entities to government and vice versa.

This was discussed during Carol's agenda item.

Responsibility

Carol Croce

Due date

November CCC meeting

1. Welcome, apologies and introductions

Michael Hardy welcomed committee members including guest Trevor Garrett. Each external member detailed what organisation they were from and how long they had been in the forum, to help paint a picture.

2. Endorsement of previous meeting's minutes

The minutes from 27 July 2010 were accepted with one minor change which has been actioned.

3. Charity Regulation - The New Zealand Experience

A presentation about charity regulation in New Zealand was given by Trevor Garrett, Chief Executive, New Zealand Charities Commission.

The presentation was very well received. Listed below is further information not in the presentation.

  • The New Zealand Charity Commission began operations in 2005.
  • Charity registration in New Zealand is voluntary, however to receive tax concessions you must be registered.
  • The Commissions' biggest stakeholder is the public but charities are very important. The commission is aiming to be transparent and accountable to the public.
  • By having a Commission, the government can receive more accurate information about charities and the Commission can educate and monitor charities to help them comply more effectively.
  • All tax decisions (that is, about granting exemptions) are made by Inland Revenue and not the Commission. They work closely together.
  • Some interesting findings over the past five years:
    • compliance costs and time spent complying are minimal for most charities
    • charities are generally quite positive toward the Commission
    • the same issues that Australia faces seem to surface in New Zealand also (that is, some organisations change purpose over time).

For a copy of the presentation email the Charities Consultative Committee mailbox.

4. Tax treatment of properties transferred from state to housing authorities to community housing organisations

Community Housing Federation of Australia (CHFA) colleagues were not prepared to provide information at this stage but may into the future.

Firstly, there have been constructive discussions between CHFA and the ATO to help clear up some GST treatment confusion.

Secondly, the procedure that the NSW Government use to claim GST is under review with Treasury. The decision probably won't be a universal one as there are different state structures and it needs to be reviewed on a case by case basis.

GST law change requires the states and territories unanimous approval if there is going to be a change in the GST revenue base.

Members felt that political intervention would be best to effect law change.

5. Not for profit governance tool project

The ATO is considering building a tool that assists non profit organisations with their governance requirements.

From the ATO's point of view the aim of this tool is to ensure organisations consider if they:

  • are still a charity? (and if not they need to advise the ATO)
  • are still entitled to the concessions they receive?

It will be used to help prioritise the organisation's governance responsibilities.

Members felt that something like that would be useful but probably more as a checklist rather than a governance tool as that insinuates a 'big brother' tool. A governance tool would be useful as an annual review tool for the charity.

As a result of the discussion it was decided that it best to gauge interest through Non Profit News Service.

6. GST risk and intelligence update

ATO provided the following updates:

Grants update

ATO is continuing to wait on the outcome of the Department of Transport (Victoria) case. The final decision will most likely set a precent for future cases. The Commissioner has lodged an application for special leave which hasn't been heard yet.

Non profit interactive concessions tool

The intention of this tool is to have organisations answer questions that will list the obligations and concessions the organisations is entitled to.

Work is currently underway to have the tool published electronically and user testing will commence shortly.

*The three standing agenda updates - GST, fringe benefits tax (FBT) and non profit (NP) will be sent out prior to the meeting to allow for questions and discussion at the meeting.

7. GST update

After 1 July 2010 only those GST rulings we have specifically indicated will be public rulings. All other rulings will be general advice. The reason for this is that the general rulings are just a simple application of law.

Below is a full update of GST changes since the last meeting.

1. Changes arising from the Board of Taxation (BOT) review

1. A summary of amendments to indirect tax legislation taking effect from 1 July 2010:

  1. Rulings (BOT 17) - from 1 July 2010, amendments broaden the scope of the general rulings system to extend it to the GST, luxury car tax (LCT), wine equalisation tax (WET) and excise duty. This ensures, where possible, that consistent rules for rulings apply across different taxes and excise.

    Private indirect tax (for example, GST) rulings in operation immediately prior to 1 July 2010 are treated as if they were made under the general rulings regime. (For example, objection rights rather than informal review.)

    Public indirect tax (for example, GST) rulings in operation immediately prior to 1 July 2010 that were gazetted or labelled as public rulings are treated as if they were made under the general ruling regime.

  1. Expansion of the Tourist Refund Scheme - residents of Australia's External Territories (for example, Norfolk, Cocos [Keeling] and Christmas Islands) can claim refunds of any GST and WET on goods they have acquired and are exporting as unaccompanied baggage via the Tourist Refund Scheme (TRS) if they can show proof that the goods have been exported to their External Territory, or will be exported within 60 days. 
  2. Domestic Agencies - a broader range of entities can use the simplified accounting procedures in subdivision 153-B beyond common law agents. Both the principal and intermediary must have a written agreement that they will use these simplified accounting procedures.
  3. Time limits on entitlements to ITCs and fuel tax credits - fuel tax credits limited to a four-year period (this is in line with the four-year period for GST credits effective from 12 May 2009). 
  4. Recovery of overpaid refunds - amendments ensure that overpaid refunds are treated the same way as underpaid liabilities for the purpose of general interest charges.
  5. GST adjustment note threshold - the threshold for having to hold an adjustment note increased from $50 to $75.
  6. Third party payments - about increasing and decreasing adjustments.  Division 134 was also amended to ensure that it operates properly in relation to parties in the supply chain who are members of the same GST group, GST religious group or GST joint venture.
  7. Attribution of input tax credits (BOT 20) - amendment (Division 93 of the GST Act) clarifies existing GST law to ensure that taxpayers can continue to attribute an ITC, relating to a creditable acquisition, to a current or future tax period rather than revising a BAS for an earlier tax period. Note: This rule is subject to the four year restriction on claiming ITCs that commenced on 12 May 2009 (1 July 2010 for fuel tax credits).
  8. Grouping and joint ventures - entities are able to self assess their eligibility to form, change or dissolve a GST group or GST joint venture and to do so at any time during a tax period (Divisions 48 and 51). This also applies to WET and fuel tax credit registered entities. Members of a GST group (and participants in a GST joint venture) are able to enter into an indirect tax sharing agreement (ITSA), with a representative member or operator to limit their indirect tax liabilities.
  9. Tax invoices (BOT 9) - replaced the prescriptive list for a document to be a tax invoice (including RCTIs) with equivalent but more flexible principles. This is relevant to fuel tax credit claimants.

2. The Treasury has released exposure draft legislation and draft explanatory memoranda concerning changes to improve the administration of the GST law as it relates to the running balance account and non-profit sub-entities. This legislation will implement BOT recommendations 39 and 43. The closing date for submissions was Wednesday 27 October 2010.

2. Amendment of GST law since the last CCC meeting on 28 July 2010

1. Treasury has released a consultation paper which seeks comments on proposed amendments to the GST Act to allow eligible supplies of boats used for recreational purposes to be GST-free, if the boats are exported from Australia within 12 months, with effect from 1 July 2011. The proposal was announced as part of the 2010-11 Federal Budget.

3. Consultation on the paper Native Title, Indigenous Economic Development and Tax

1. The government has resumed consultation on the paper entitled Native Title, Indigenous Economic Development and Tax. Amongst other things, the consultation paper provides an overview of how the current income tax law may apply to payments made under agreements recognised by the Native Title Act 1993.

4. GST products and other Tax Office products issued since the last CCC meeting held on 28 July 2010

1. Draft GSTR

None

2. Draft GSTR Addenda

None

3. New GSTR

1. GSTR 2010/1: application of Division 165 of the A New Tax System (Goods and Services Tax) Act 1999 where a land owner engages the services of an associate to arrange construction of residential premises for lease under an arrangement described in Taxpayer Alert TA 2009/5 (previously issued as draft GSTD 2009/D2)

4. GSTR Addenda

1. GSTR 2004/2A: what is a joint venture for GST purposes?

2. GSTR 2004/3A: arrangements of the kind described in Taxpayer Alert TA 2004/2 - avoidance of GST on the sale of new residential premises

3. GSTR 2005/3A: arrangements of the kind described in Taxpayer Alert TA 2004/9 - exploitation of the second-hand goods provisions to obtain input tax credits

4. GSTR 2005/4A: arrangements of the kind described in Taxpayer Alerts TA 2004/6 and TA 2004/7: use of the grouping or margin scheme provisions of the GST Act to avoid or reduce the GST on the sale of new residential premises

5. GSTR 2003/5A2: vouchers

6. GSTR 2006/4A2: determining the extent of creditable purpose for claiming input tax credits and for making adjustments for changes in extent of creditable purpose

7. GSTR 2002/3A3: prizes

8. GSTR 2005/3A2: arrangements of the kind described in Taxpayer Alert TA 2004/9 - exploitation of the second-hand goods provisions to obtain input tax credits

5. GSTR withdrawn

None

6. Draft GSTD

None

7. New GSTD

None

8. GSTD

1. GSTD 2004/2: are all supplies made by the entity nominated as the joint venture operator to entities that are participants in the GST joint venture to be treated as if they are not taxable supplies?

9. GSTD Addenda

GSTD 2004/2A - are all supplies made by the entity nominated as the joint venture operator to entities that are participants in the GST joint venture to be treated as if they are not taxable supplies?

10. GSTD withdrawn

GSTD 2008/1W: for taxable supplies or creditable acquisitions made by a member entity of a GST group, is the representative member of the GST group liable to pay GST and entitled to input tax credits if the GST or input tax credits are attributable to a tax period other than when the entity is a member of the GST group? (withdrawn as it is no longer required).

GSTD 2010/1W: are there GST consequences where a land owner engages the services of an associate to arrange construction of residential premises for lease under an arrangement described in Taxpayer Alert TA 2009/5? (the authorised ruling is GSTR 2010/1')

11. New GST ATO IDs

1. ATO ID 2001/605: motor vehicle expenses - leased motor vehicle - deductibility of GST on payment of the residual value

2. ATO ID 2010/144: GST and tax invoice for multiple recipients

3. ATO ID 2010/145: GST and dip with biscuits

4. ATO ID 2010/146: GST and tax invoices issued by another entity on behalf of a supplier

5. ATO ID 2010/147: Income Tax: bounties and subsidies: whether a repayable government payment a 'bounty or subsidy'

(Compare examples in paragraphs 110 to 114 in GSTR 2000/11)

6. ATO ID 2010/147: Income Tax: research and development: clawback (section 73C) for grants and recouped expenditure where the grant or recoupment may be subject to a repayment obligation

(Compare examples in paragraphs 108 to 114 in GSTR 2000/11)

7. ATO ID 2010/152: WET: effect of principle of mutuality on sales by clubs and associations

8. ATO ID 2010/156: GST and treatment of a currency hedge agreement embedded within a contract for services

9. ATO ID 2010/176: GST and termination payment relating to assignment of payment streams

10. ATO ID 2010/194: GST and supply by way of lease of a building designed to provide tertiary student accommodation.

12. GST ATO IDs withdrawn

1. ATO ID 2001/653: GST and the date of effect of approval of an additional member of a GST group

2. ATO ID 2004/692: GST and date of effect of revocation of GST group membership approval when member sold one minute before midnight on the last day of a tax period applying to all group members

3. ATO ID 2001/245: GST and tax invoice for multiple recipients

4. ATO ID 2002/684: GST and dip with biscuits

5. ATO ID 2006/110: GST and tax invoices

13. New MT

None

14. Draft MT

None

15. Class Rulings

1. CR 2010/48: assessable income: Football Umpires: Northern Tasmanian Football League

(A pastime or hobby of an individual (paragraph 9-20(2)(b) of the GST Act) vs an income producing activity of the individual (paragraphs 9-20(1)(a) and (b) of that Act)

2. Others: generally not applicable to GST

16. New legislative instrument

N/A

17. New Practice Statement

N/A

18. Practice Statement withdrawn

PS LA 2004/2 (GA) (Withdrawn) Application of GST grouping rules to representatives of incapacitated entities

19. Draft Practice Statement

1. Draft Practice Statement Law Administration PS LA 3326 - provides an explanation on when technical discussion papers should be published, and the processes for development and finalisation of technical discussion papers.

20. Related ATO publications

1. Changes to tax invoices and recipient created tax invoices - frequently asked questions.

The information required for a tax invoice does not have to be contained in a single document. More than one document issued by the same supplier may constitute the tax invoice where the combination of documents contains all of the required information. The supplier needs to make it clear on the main document that it is intended to be a tax invoice.

If you are registered for GST and make taxable supplies and issue tax invoices which comply with previous ATO guidelines, changes to accounting systems and software will not be necessary.

2. GST governance and risk management guide - to help large public and privately operated entities with turnover of more than $250 million to review their GST governance and risk management frameworks

3. GST and property adjustments (NAT 73602-10.2010) - an ATO guide on the circumstances where a GST adjustment may need to be made during a property transaction.

5. GST cases and related matters since the last CCC meeting on 28 July 2010

1. The Commissioner has lodged an application for special leave to appeal to the High Court against the Full Federal Court decision in Federal Commissioner of Taxation v. Gloxinia Investments (Trustee) [2010] FCAFC 46. The Full Federal Court had dismissed the Commissioner's appeal from an earlier Federal Court decision that a taxpayer's proposed assignment of leases of units in a residential building would constitute input taxed supplies under subdivision 40-C of the GST Act.

2. Commissioner of Taxation v. Secretary to the Department of Transport (Victoria) [2010] FCAFC 84 - the majority of the Full federal court concluded that the Department made a creditable acquisition, being the carriage of the passenger, from the taxi operator. The dissenting judge found that the Department made the subsidy payments without acquiring anything in return.

The Commissioner has lodged an application seeking special leave to appeal to the High Court.

3. Wentworth District Capital Ltd v. Federal Commissioner of Taxation - the Full Federal Court held that an organisation that assisted Bendigo Bank to provide banking facilities to a community was exempt from tax. The question for the Court was whether the taxpayer was an association 'established for community service purposes' and therefore exempt from paying income tax on its ordinary income under section 50-1 of the Income Tax Assessment Act 1997 (ITAA 1997). It concluded that, for the years in question, the taxpayer was established for community services purposes and its income was, therefore, exempt.

The ATO has appealed to the Full Federal Court against the decision.

(Compare current ATO view in ATO ID 2002/931 on association established for community service purposes (is the organisation, a community bank, exempt from income tax under sections 50-1 and 50-10 of the ITAA 1997?))

4. R v. Bromley - the Victorian Supreme Court has sentenced a taxpayer to seven and a half years' imprisonment, with a non-parole period of five years, for offences relating to 'fraudulent GST refund claims' totalling more than $9 million.

5. The ATO has released a Decision Impact Statement on the decision in AAT Case [2010] AATA 22, Re Luxottica Retail Australia Pty Limited and Federal Commissioner of Taxation. The Decision Impact Statement outlines the ATO's response to the tribunal's decision on the GST treatment of the sale of spectacle frames at a discount conditional upon the purchase of a complete pair of prescription spectacles, and the issue of GST refunds.

The ATO has filed a notice of appeal with the Full Federal Court in respect of the first mentioned issue only.

6. AAT Case [2010] AATA 576, Re Smith and Federal Commissioner of Taxation - Administrative Appeals Tribunal (AAT) affirmed that a taxpayer did not carry on a share trading business but rather he was an investor. During the 2007 and 2008 income years, the taxpayer engaged in the buying and selling of shares. The taxpayer lodged his tax returns on the basis that he was a share trader for the relevant income years.

7. AAT Case [2010] AATA 620, Re Australian Leisure Marine Pty Ltd and Federal Commissioner of Taxation - the Administrative Appeals Tribunal (AAT) affirmed that a taxpayer was not entitled to claim ITCs because of section 105 55(1) of Schedule 1 to the Taxation Administration Act 1953 (TAA).

8. The Full Federal Court heard the Commissioner's appeal in the case of American Express International Inc - Justices Kenny and Middleton allowed the Commissioner's appeal. Justice Dowsett dissented.

9. In Travelex Ltd v. Federal Commissioner of Taxation, the majority of the High Court of Australia held that the supply of foreign currency on the departure side of the customs barrier to travellers by the taxpayer was GST-free under item 4(a) of the table in section 38 - 190(1) of the GST Act. This was because the supply was in relation to rights for use outside Australia. The Full Federal Court and the Federal Court had previously concluded that the rights were incidental to the supply, and therefore the supply was not GST-free.

10. The High Court has refused the Tax Office special leave to appeal from the decision of the Full Federal Court in Federal Commissioner of Taxation v. Gloxinia Investments (Trustee) (2010) 75 ATR 806. The Full Federal Court had dismissed an appeal by the Tax Office against an earlier Federal Court decision that a taxpayer's proposed assignment of leases of units in a residential building would constitute input taxed supplies under subdivision 40-C of the GST Act.

11. Bargwanna (Trustees) v. Commissioner of Taxation [2010] FCAFC 126 - The Full Federal Court considered that the Justice Edmond's decision to set aside the Tribunal's decision was correct, but for the reasons outlined in their judgment.

As the Tribunal did not address all of the evidence to determine whether or not the fund was being applied to the relevant charitable purpose, the matter has been remitted to the Administrative Appeals Tribunal for further consideration and decision in accordance with law.

12. In Saunders v. Deputy Commissioner of Taxation, the Western Australian Supreme Court granted a taxpayer's application for declaratory relief to the effect that a valid trust was created over property he had originally acquired in 1990 in his own name. The trust had been declared in favour of a family trust at the time of the property's subdivision five years later, in 1995. As a result, the commissioner could not argue that the taxpayer was personally liable for capital gains tax on the sale of one of the lots for close to $4 million in June 2006.

13. In Federal Commissioner of Taxation v. H, the Full Federal Court dismissed the appeal by the ATO and held that the obligation to pay income tax properly assessed is a present legal obligation at the end of the income year in respect of which the income is received. It also said the general interest charge (GIC) was a present legal obligation for each day on which tax that should have been paid remains unpaid. In effect, the court upheld the decision by the AAT that income tax and GIC were present legal obligations that had to be deducted in calculating net assets and, in turn, distributable income, in accordance with the formula in section 102Y(2) of the Income Tax Assessment Act 1936 (ITAA 1936).

14. The taxpayer has lodged an application for special leave to appeal to the High Court from the Full Federal Court decision in Federal Commissioner of Taxation v. American Express Wholesale Currency Services Pty Ltd [2010] FCAFC 122. The Full Federal Court had allowed the commissioner's appeal and held that default fees received by the taxpayer from cardholders were revenue from financial supplies for GST purposes.

6. Charities Consultative Committee Resolved Issues Document (CCC RID)

1. Public indirect tax rulings

From 1 July 2010, some issues in the CCC RID are labelled as public indirect tax rulings made under the general rulings regime. As public indirect tax rulings, these issues are expressions of the ATO views about the ways in which the respective provisions would apply to taxpayers. That is, these issues are the only sources of those ATO views.

The following issues have been labelled as public rulings for the purposes of the general rulings regime:

  • Question 6 in Part 1
  • Part 3 (Non-commercial activities of charities, cost of supply and market value tests), and
  • Question 5 in Part 6.

Under the general rulings regime, if you rely on a public ruling, we must apply the law to you in the way set out in the ruling. You will be protected from having to pay any underpaid tax, penalty or interest in respect of the matters covered by the ruling if it turns out that the ruling does not correctly state how the law applies to you.

2. Other issues in the CCC RID that have not been labelled as public rulings are labelled as 'Non-interpretative - straight application of the law'. They are treated as written guidance.

If you follow a written guidance which turns out to be incorrect or misleading and you make a mistake as a result, you will be liable to pay any underpaid tax. We will not charge you a penalty. Also, if you acted reasonably and in good faith we will not charge you interest.

3. Section C (Benchmark market values for charities) in Part 3 will be updated to take effect from 1 January 2011.

8. FBT update

There has been an increase of fraud instances, more specifically reproduction of receipts. This is disturbing to the ATO.

ATO received a voluntary disclosure about an entity and its access to FBT concessions. Concern around this issue is mildly increasing.

A member commented that a governance checklist would help with this.

9. Non profit update

A handout detailing the non profit articles that had gone out in via the Non Profit news service since the last meeting was provided during the meeting.

August 2010

No. 0293 - Fuel tax credits affected by recent changes to GST law

There have been a number of changes to GST law which came into effect on 1 July 2010. Some of these apply to claims for fuel tax credits even if you are not required to be registered for GST.

Changes to tax invoices

Information requirements for tax invoices have been relaxed from 1 July 2010.

If you claim fuel tax credits, the information required for a tax invoice does not have to be contained in a single document. More than one document issued by the same supplier may constitute the tax invoice where the combination of documents contains all of the required information. The supplier needs to make it clear on the main document that it is intended to be a tax invoice.

If you are registered for GST and make taxable supplies and issue tax invoices which comply with previous ATO guidelines, changes to accounting systems and software will not be necessary.

More information is available in Changes to tax invoices and recipient created tax invoices - frequently asked questions.

Fuel tax credit claims

If you are registered for GST, you should claim any outstanding fuel tax credit within four years of the end of the tax period to which it applies. You can do this using your current business activity statement (BAS) rather than by revising an earlier BAS that relates to the date of the tax invoice.

If you are not registered for GST and not required to be registered for GST, you should claim any outstanding fuel tax credits within four years of the date when you were required to give the ATO your fuel tax credit claim form.

No. 0294 - Donations to help flood victims in Pakistan

From 28 July 2010, flash floods following torrential monsoonal rains in northwest Pakistan have caused widespread casualties and damage. Appeals have been launched to help victims of the disaster by collecting donations to support relief operations.

If your organisation wants to set up a tax deductible fund to collect donations for use outside Australia, it may be easier and quicker for you to arrange with one of the larger and already approved funds to collect money on their behalf. If your organisation collects donations on behalf of another organisation, remember to comply with state and territory government collections acts.

Donations to an appeal are tax deductible if the organisation operating the appeal is endorsed as a deductible gift recipient (DGR) and is an overseas aid fund. You can check whether an organisation is a DGR on the Australian Business Register.

Information about non-government organisations that operate tax deductible overseas aid funds is also available on the AusAID website.

If you are an employer, you may collect donations from your employees on behalf of a DGR through a workplace giving program or under a salary sacrifice arrangement. Donations made to DGRs under a salary sacrifice arrangement are not subject to fringe benefits tax.

Your organisation may arrange with an approved overseas aid fund to hold a fundraising event on their behalf. Sales made in connection with this fundraising event may be input taxed. Goods and services tax (GST) is not included in the price of input taxed sales and the approved overseas aid fund cannot claim any GST credits for things purchased in making those sales. For GST purposes, a fundraising event is any of the following events:

  • a fete, ball, gala show, dinner, performance or similar event
  • an event where goods other than alcoholic beverages or tobacco products are sold - provided that each sale is for $20 or less
  • an event that we have approved as a fundraising event.

For more information about making tax deductible donations, collecting on behalf of a DGR and related issues, refer to Assisting victims of disasters.

No. 0295 - Recent case: Wentworth District Capital Ltd

On 13 August 2010, Justice Perram handed down the decision in Wentworth District Capital Ltd v. Commissioner of Taxation [2010] FCA 862. The case concerned the issue of whether Wentworth District Capital Ltd was established for a community service under item 2.1 of section 50-1 ITAA 1997. Justice Perram held that in 2006 and 2007 Wentworth District Capital Ltd was established for community services purposes and the income was therefore exempt.

We are currently considering the implications of the decision. We will be providing further advice when the consequences of the decision have been considered.

September 2010

No. 0296 - Donations of property and vendor finance

The ATO advises that donors take care if considering making a donation of property purchased by instalment contract or vendor finance; in particular where the vendor financing involves long term low or no interest loans.

For a donor to claim a deduction for a gift, there are several requirements:

  • the gift must be made to a deductible gift recipient (DGR)
  • the payment must really be a gift
  • the gift must be of money or property that is covered by one of the deductible gift types, and
  • any gift conditions must be satisfied.

There are also several requirements to be a gift, the most essential of which is that there has to be a transfer of money or property. If money or property has not been transferred to a DGR or if the 'donor' does not own the item being transferred, that person may not claim a tax deduction for a gift. Before making a gift of property, donors should always check that they own the property. For example, under some vendor finance purchase agreements the buyer is not the owner of the property until the final payment is made.

Property has a wide meaning for gift purposes. As well as physical things, it includes rights and interests that are capable of ownership and have a value. For property (other than trading stock and certain public shares) purchased during the 12 months before donating it, the amount the donor may claim is the lesser of:

  • the market value of the property on the day the gift was made, and
  • the amount the donor paid for the property.

Whether the market value of the property on the day the gift was made is above or below the amount paid for the property is a matter of fact. It is up to the donor, not the DGR or the vendor, to find out the market value of the gift. Donors should seek advice if concerned about the amount that can be claimed, if payment instalments fall due over an extended period, or if vendor finance is offered at low or no interest rates over an extended period.

There is no gift deduction where a person enters into an arrangement in relation to the making of a gift and:

  • the value of the gift to the DGR is, or would be expected to be, less than the value of the gift at the time the gift was made
  • any other organisation makes, or may reasonably be expected to make, payments to other persons in relation to the gift
  • the donor or an associate obtains, or would be expected to obtain, any benefit other than the benefit of a tax saving, or
  • the DGR or another fund, authority or institution is to acquire property from the donor or an associate.

For more information about market valuations, see Market valuation for tax purposes. It covers real property, plant and equipment, businesses, securities and intangible assets. Some deductible gift types have special valuation rules. These are explained in Making tax deductible gifts and contributions.

For more information about deductible gifts, refer to Making tax deductible gifts and contributions. It covers a number of topics including:

  • deductions for gifts of property valued by the ATO at more than $5,000
  • capital gains and other consequences of making gifts, and
  • record keeping requirements.

No. 0297 - Support for victims of recent Christchurch earthquake

The Assistant Treasurer has issued a declaration to recognise the recent earthquake in Christchurch as a disaster for the purposes of tax deductibility of donations.

Organisations wishing to establish a tax deductible fund to assist victims should refer to: Developed country disaster relief funds.

Attention icon

Organisations seeking endorsement as a 'developed country disaster relief fund' must apply to us.

An extract from the Assistant Treasurer's media release No. 0158 dated 9 September 2010 is below. The full media release can be viewed on the Assistant Treasurer's website.

Declaration to boost disaster relief effort for the Christchurch earthquake

The Assistant Treasurer announced the earthquake that hit New Zealand's second largest city last Saturday has been recognised as a disaster for Australian tax purposes.

    'I know Australians will want to help out the people of Christchurch, and allowing a tax deduction for their gifts is an appropriate way of boosting the relief drive,' the Assistant Treasurer said.

The Assistant Treasurer's declaration means public funds established and maintained by a public benevolent institution solely to provide money for the relief of people in New Zealand who are in distress as a result of the Christchurch earthquake can be endorsed as 'developed country relief funds'. Donations to such funds are tax deductible for a period of two years from 4 September 2010. Taxpayers should ensure they retain a receipt for their donation.

October 2010

There are no news articles for October 2010 (as at 29 October 2010).

Three items were discussed during the meeting:

1. No.0297 - Support for victims of recent Christchurch earthquake.

There was a query about whether there is a need to set up a new tax-deductible donations fund for each disastrous event or whether a fund established for an earlier event can be used for a similar situation?

It was confirmed that a new fund must be set up for each event in a developed country following the formal recognition by a Treasury Minister of the disaster. The recognition of the disaster and processing of any fund applications are generally made in a timely manner.

Donations to an appeal for a disaster in a developing country are tax deductible if the organisation operating the appeal is endorsed as a DGR and is an overseas aid fund.

2. No. 0295 - Wentworth District Capital Ltd.

Wentworth District Capital Ltd's local banking activities were judged to have been established for community services purposes. The Commissioner has appealed the court decision.

The Word decision is increasingly encouraging endorsed organisations to consider whether they have commercial opportunities for income generation.

3. No. 0296 - Donations of property and vendor finance

The ATO has advised that donors take care if considering donating property purchased by instalment contract or vendor finance; in particular, where the vendor financing involves long term low or no interest loans.

Recently some donors have found that a scheme involving long-term loans to allow a donation did not provide the 'promised' tax deduction.

10. Other business

  • Members fed back that the Treasury review of ancillary funds was out for feedback in December 2009 and due in January 2010 which did not allow much time to respond due to timing and shut down issues. It was hoped that future consultations would not be undertaken over the Christmas break.
  • The national compact group has now wound up.

Meeting closed 2.00pm

Next meeting

Sydney, 22 March 2011.

Last Modified: Thursday, 13 January 2011


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