ato logo

Commissioner's remedial power not applied – not-for-profit

Where the CRP was considered but not applied to modify the operation of tax law that affects NFP entities.

Last updated 21 November 2022

How this page works

The Commissioner of Taxation has limited powers to modify the operation of tax law in circumstances where entities will benefit, or at least be no worse off, as a result of the modification. This power is known as the Commissioner's remedial power (CRP).

To help taxpayers and practitioners, this page describes situations where the Commissioner has used the CRP to modify the operation of the law applying to individuals. Each section has:

  • links to legislative instruments
  • links to explanatory materials
  • information about when it applies to and from.

We will add to this page as the CRP is applied to new situations.

Not-for-profit (NFP) exemption from income tax

Issue description

Income tax exempt not-for-profits (NFP) must satisfy ‘special conditions’ by applying income and assets solely for the purposes for which they are established and complying with all the substantive requirements in their governing rules.

Some in the NFP sector consider that the conditions operate overly restrictively with minor technical breaches resulting in the loss of the income tax exemption. Some in the sector consider that the ATO’s attempts to relieve this result by the terms of a public ruling (Taxation Ruling TR 2015/1 Income tax: special conditions for various entities whose ordinary and statutory income is exempt) are not supported by the law, and therefore doesn't provide sufficient certainty for all sector participants.

Use of the CRP was sought to modify the law to include a discretion to allow NFPs to be held to satisfy special conditions and maintain exempt status.

Paragraphs 9.56 and 9.60 of the Explanatory Memorandum to the Tax Laws Amendment (2013 Measures No 2) Bill 2013 states that NFPs must comply with these special conditions and ‘are expected to operate in a manner consistent with those rules and purposes’ to retain their exempt status. Paragraph 9.61 notes the requirement to comply with the substantive requirements allowing for ‘minor procedural irregularities’ to occur whilst retaining exempt status. It is clear compliance with the substantive requirements is expressly required and that a limited discretion already exists. Therefore, modifying the law to apply a broader discretion is inconsistent with the intended purpose or object of the provisions.

CRP suitability

This is unsuitable as it is inconsistent with the intended purpose or object of the relevant provision.