Tax Law Improvement Act 1997 (121 of 1997)

Schedule 1   Amendment of the Income Tax Assessment Act 1997

7   After Division 28

Insert:

Division 30 - Gifts or contributions

Table of Subdivisions

Guide to Division 30

30-A Deductions for gifts or contributions

30-B Tables of recipients for deductible gifts

30-C Rules applying to particular gifts of property

30-D Testamentary gifts under the Cultural Bequests Program

30-E Register of environmental organisations

30-F Register of cultural organisations

30-G Index to this Division

Guide to Division 30

30-1 What this Division is about

This Division sets out the rules for working out deductions for certain gifts or contributions that you make.

Table of sections

30-5 How to find your way around this Division

30-10 Index

30-5 How to find your way around this Division

(1) You should start at Subdivision 30-A unless you are making a testamentary gift under the Cultural Bequests Program.

Note: Subdivision 30-D deals with the deductibility of such a gift.

(2) Subdivision 30-A contains a table of all the gifts and contributions that you can deduct. You need to look at the table to see whether the type of gift or contribution you are making is covered by it.

(3) In some cases, the table sends you off to Subdivision 30-B. It has a number of tables that list particular funds, authorities or institutions that deductible gifts can be made to.

(4) In other cases, the table sends you off to Subdivision 30-C. It contains rules that apply to particular gifts of property.

(5) Subdivision 30-E requires the establishment of a register of *environmental organisations. Subdivision 30-F requires the establishment of a register of *cultural organisations. Their only relevance to you is that you can deduct a gift that you make to a fund listed on either register.

30-10 Index

There is an index to this Division in Subdivision 30-G.

Subdivision 30-A - Deductions for gifts or contributions

Table of sections

30-15 Table of gifts or contributions that you can deduct

30-15 Table of gifts or contributions that you can deduct

(1) You can deduct a gift or contribution that you make in the situations set out in the following table. It tells you:

who the recipient of the gift or contribution can be; and

the type of gift or contribution that you can make; and

how much you can deduct for the gift or contribution; and

any special conditions that apply.

(2) A testamentary gift or contribution is not deductible under this section.

Note: Subdivision 30-D deals with the deductibility of testamentary gifts under the Cultural Bequests Program.

Subdivision 30-B - Tables of recipients for deductible gifts

Table of sections

Health

30-20 Health

Education

30-25 Education

30-30 Gifts that must be for certain purposes

30-35 Gifts to a public fund established to benefit a rural school hostel building must satisfy certain requirements

Research

30-40 Research

Welfare and rights

30-45 Welfare and rights

Defence

30-50 Defence

Environment

30-55 The environment

30-60 Gifts to a National Parks body or conservation body must satisfy certain requirements

Industry, trade and design

30-65 Industry, trade and design

The family

30-70 The family

30-75 Marriage guidance organisations must be approved

International affairs

30-80 International affairs

30-85 Declaration must be in force at the time you make the gift

Sports and recreation

30-90 Sports and recreation

Philanthropic trusts

30-95 Philanthropic trusts

Cultural organisations

30-100 Cultural organisations

Health

30-20 Health

(1) This table sets out general categories of health recipients.

Education

30-25 Education

(1) This table sets out general categories of education recipients.

30-30 Gifts that must be for certain purposes

(1) You can deduct a gift that you make to:

(a) a technical and further education institution covered by item 2.1.7 of the table in subsection 30-25(1); or

(b) the Marcus Oldham Farm Management College;

only if the gift is for:

(c) purposes of the institution, or of the College, that have been declared by the Minister for Employment, Education, Training and Youth Affairs to relate solely to tertiary education; or

(d) the provision of facilities for the institution, or the College, if the Minister has declared that he or she is satisfied the facilities are to be used principally for such purposes.

(2) A declaration under subsection (1) must be in writing, signed by the Minister.

30-35 Gifts to a public fund established to benefit a rural school hostel building must satisfy certain requirements

(1) You can deduct a gift that you make to a public fund covered by item 2.1.11 of the table in subsection 30-25(1) only if each requirement in this section is satisfied.

(2) The rural school hostel building must be used, or going to be used, principally as residential accommodation for students:

(a) whose usual place of residence is in a rural area; and

(b) who are undertaking primary or secondary education, or special education programs for children with disabilities, at a school in the same area as the building.

(3) The costs of the school must be solely or partly funded by the Commonwealth, a State or a Territory.

(4) The residential accommodation must be provided by:

(a) the Commonwealth, a State or a Territory; or

(b) a public authority; or

(c) a company that:

(i) is not carried on for the purposes of profit or gain to its individual members; and

(ii) is prohibited by its *constitution from making any distribution of money or property to its members.

Research

30-40 Research

(1) This table sets out general categories of research recipients.

Welfare and rights

30-45 Welfare and rights

(1) This table sets out general categories of welfare and rights recipients.

Defence

30-50 Defence

(1) This table sets out general categories of defence recipients.

Environment

30-55 The environment

(1) This table sets out general categories of environment recipients.

30-60 Gifts to a National Parks body or conservation body must satisfy certain requirements

You can deduct a gift that you make to:

(a) an environmental institution covered by any of the items 6.2.1 to 6.2.12 of the table in subsection 30-55(2); or

(b) the World Wide Fund for Nature;

only if, at the time of making the gift:

(c) the institution or Fund has agreed to give the Secretary to the Department of the Environment, Sport and Territories, within a reasonable period after the end of the income year in which you made the gift, statistical information about gifts made to the institution or Fund during that income year; and

(d) the institution or Fund has a policy of not acting as a mere conduit for the donation of money or property to other institutions, bodies or persons.

Industry, trade and design

30-65 Industry, trade and design

This table sets out specific industry, trade and design recipients.

The family

30-70 The family

(1) This table sets out general categories of family recipients.

30-75 Marriage guidance organisations must be approved

(1) You can deduct a gift that you make to a public fund covered by item 8.1.1 of the table in subsection 30-70(1) only if the organisation, or branch or section of the organisation, has been declared by the Attorney-General to be a marriage guidance organisation.

(2) The Attorney-General may declare an organisation, or a branch or section of an organisation, to be a marriage guidance organisation if he or she is satisfied that:

(a) it is willing and able to engage in marriage guidance; and

(b) marriage guidance is, or will be, its only activity, or a major part of its activities.

(3) A declaration under subsection (1) must be in writing, signed by the Attorney-General.

International affairs

30-80 International affairs

(1) This table sets out general categories of international affairs recipients.

30-85 Declaration must be in force at the time you make the gift

(1) You can deduct a gift that you make to a public fund covered by item 9.1.1 of the table in subsection 30-80(1) only if the declaration is in force at the time you make the gift.

(2) The Treasurer may, by notice in the Gazette, declare a public fund to be a relief fund if he or she is satisfied that the fund:

(a) has been established by an organisation declared by the Minister for Foreign Affairs to be an approved organisation; and

(b) is solely for the relief of people in a country declared by the Minister for Foreign Affairs to be a developing country.

(3) The notice must specify the day on which it has effect. It cannot have effect earlier than the day on which it is published in the Gazette.

(4) The Treasurer may, by notice in the Gazette, revoke a declaration that a public fund is a relief fund. The notice must specify the day on which it has effect. It cannot have effect earlier than the day on which it is published in the Gazette.

(5) A declaration by the Minister for Foreign Affairs under this section must be in writing, signed by the Minister.

Sports and recreation

30-90 Sports and recreation

This table sets out specific sports and recreation recipients.

Philanthropic trusts

30-95 Philanthropic trusts

This table sets out specific philanthropic trusts.

Cultural organisations

30-100 Cultural organisations

(1) This table sets out general categories of cultural recipients.

Subdivision 30-C - Rules applying to particular gifts of property

Table of sections

Valuation requirements

30-200 Getting written valuations

30-205 Sale price would have been assessable

30-210 Approved valuers

Working out the amount you can deduct for a gift of property

30-215 How much you can deduct

30-220 Reducing the amount you can deduct

Joint ownership of property

30-225 Gift of property by joint owners

Valuation requirements

30-200 Getting written valuations

(1) You satisfy the valuation requirements if you get 2 or more written valuations of the gift you made.

Note 1: In most cases, you need to get these written valuations to be able to deduct a gift of property that you make to a recipient covered by
item 4, 5 or 6 of the table in section 30-15.

Note 2: You do not need to get written valuations in the circumstances set out in section 30-205.

(2) The valuations must be by different individuals, each of whom is an approved valuer of the kind of property you are giving away.

Note: Section 30-210 deals with how an individual becomes an approved valuer.

(3) Each valuation must state the amount that, in the opinion of the valuer, was:

(a) the market value of the property on the day you made the gift; or

(b) the market value of the property on the day the valuation was made.

(4) If a valuation states the market value of the property on the day the valuation was made, it must have been made within 90 days before or after the gift was made. However, the Commissioner may allow a longer period than this.

30-205 Sale price would have been assessable

You do not need to get written valuations of the gift you made if:

(a) no amount is included in your assessable income in respect of the gift you made; but

(b) an amount would have been included in your assessable income if you had sold the property instead of making the gift.

30-210 Approved valuers

(1) The Secretary to the Department of Communications and the Arts may approve an individual as a valuer of a particular kind of property. The approval must be in writing, signed by the Secretary.

(2) The Secretary must, in deciding whether to approve an individual, have regard to:

(a) the individual’s qualifications, experience and knowledge in valuing that kind of property; and

(b) the individual’s knowledge of the current market value of that kind of property; and

(c) the individual’s standing in the professional community.

Working out the amount you can deduct for a gift of property

30-215 How much you can deduct

(1) This section contains the rules for working out how much you can deduct for a gift of property that you make to a recipient covered by item 4, 5 or 6 of the table in section 30-15.

(2) The general rule is that the amount you can deduct for a gift of this kind is the average of the market values specified in the written valuations you got from the approved valuers.

Note: In some situations you must reduce the amount you can deduct: see section 30-220.

(3) The exceptions to the general rule are set out in this table:

30-220 Reducing the amount you can deduct

(1) The amount you can deduct is reduced by a reasonable amount if:

(a) the terms and conditions on which the gift is made are such that the recipient:

(i) does not receive immediate custody and control of the property; or

(ii) does not have the unconditional right to retain custody and control of the property in perpetuity; or

(iii) does not obtain an immediate, indefeasible and unencumbered legal and equitable title to the property; or

(b) the custody, control or use of the property by the recipient is affected by an *arrangement entered into in respect of the making of the gift.

(2) In deciding what is a reasonable amount, have regard to the effect of those terms and conditions, or that *arrangement, on the market value of the gift.

Joint ownership of property

30-225 Gift of property by joint owners

If:

(a) you own property jointly with one or more other entities; and

(b) you and the other entities make a gift of the property; and

(c) you would have been able to deduct the gift under section 30-15 because of item 4, 5 or 6 of the table in that section if you had made a gift of the property as sole owner of it;

you can deduct so much of the gift as is reasonable, having regard to your interest in the property.

Subdivision 30-D - Testamentary gifts under the Cultural Bequests Program

Table of sections

30-230 Testamentary gifts of property

30-235 Getting a certificate

30-240 Limit on total value of gifts for an income year

30-230 Testamentary gifts of property

(1) A testamentary gift of property (except an estate or interest in land or in a building or part of a building) that you make under the Cultural Bequests Program is deductible for the income year in which you die.

Note: The trustee of your estate can claim the deduction in the tax return lodged for you that covers the period from the start of the income year to the day you die.

(2) The recipient of the gift must be:

(a) The Australiana Fund; or

(b) a public library in Australia; or

(c) a public museum in Australia; or

(d) a public art gallery in Australia; or

(e) an institution in Australia consisting of a public library, a public museum and a public art gallery or any 2 of them.

(3) The property must be given to, and accepted by, the recipient for inclusion in a collection it is maintaining or establishing.

(4) The value of the gift must be $2 or more.

(5) When you die, there must be in force a certificate from the Minister for Communications and the Arts:

(a) approving the gift; and

(b) specifying the value of the gift.

(6) If:

(a) you die before the last day of an income year; and

(b) section 26-55 (which is about a limit on deductions) prevents the whole or a part of the gift from being deductible in the tax return lodged for you for that income year;

the trustee of your estate can claim the whole or part as a deduction in the trust return for that income year.

Note: The trust return covers the period from the day you die to the end of the income year.

30-235 Getting a certificate

(1) You get a certificate by making a written application for one to the Minister for Communications and the Arts.

(2) The Minister must decide your application in accordance with written guidelines made by the Minister under this section.

(3) The guidelines may require the Minister to decide an application having regard to:

(a) specified criteria; or

(b) recommendations of particular bodies.

(4) If the Minister approves your gift, he or she must give you a certificate:

(a) approving the gift; and

(b) specifying the value of the gift; and

(c) setting out any other information that the Commissioner requires.

30-240 Limit on total value of gifts for an income year

The total value of all gifts approved by the Minister for Communications and the Arts for an income year cannot exceed an amount that the Minister determines in writing. The Minister must determine this amount before approving any gifts for that income year.

Subdivision 30-E - Register of environmental organisations

Guide to Subdivision 30-E

30-250 What this Subdivision is about

This Subdivision requires the establishment of a register of environmental organisations. Section 30-15 allows you to deduct a gift that you make to a fund that is on the register.

Table of sections

Operative provisions

30-255 Establishing the register

30-260 Meaning of environmental organisation

30-265 Its principal purpose must be protecting the environment

30-270 Other requirements it must satisfy

30-275 Further requirement for a body corporate or a co-operative society

30-280 What must be on the register

30-285 Removal from the register

Operative provisions

30-255 Establishing the register

The Secretary to the Department of Environment, Sport and Territories must keep a register of *environmental organisations.

Note: Section 30-280 sets out what details must be entered on the register.

30-260 Meaning of environmental organisation

An environmental organisation is:

(a) a body corporate; or

(b) a co-operative society; or

(c) a trust; or

(d) an unincorporated body established for a public purpose by the Commonwealth, a State or a Territory;

that satisfies each requirement in sections 30-265 and 30-270.

Note: A body corporate or a co-operative society must satisfy a further requirement: see section 30-275.

30-265 Its principal purpose must be protecting the environment

(1) Its principal purpose must be:

(a) the protection and enhancement of the natural environment or of a significant aspect of the natural environment; or

(b) the provision of information or education, or the carrying on of research, about the natural environment or a significant aspect of the natural environment.

(2) It must maintain a public fund:

(a) to which gifts of money or property for its principal purpose can be made; and

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

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

(3) It must use gifts made to the fund, and any money received because of such gifts, only for its principal purpose.

(4) It must have agreed to comply with any rules that the Treasurer and the Minister for Environment, Sport and Territories make to ensure that gifts made to the fund are used only for its principal purpose.

30-270 Other requirements it must satisfy

No payment of profits to its members

(1) It must not pay any of its profits or financial surplus, or give any of its property, to its members, beneficiaries, controllers or owners (as appropriate).

No acting as a conduit

(2) It must have a policy of not acting as a mere conduit for the donation of money or property to other organisations, bodies or persons.

Surplus assets to be transferred on winding up

(3) It must have rules providing that, if the public fund is wound up, any surplus assets of the fund are to be transferred to another fund that is on the register.

Statistical information to be provided

(4) It must have agreed to give the Secretary to the Department of Environment, Sport and Territories, within a reasonable period after the end of each income year, statistical information about gifts made to the public fund during that income year.

30-275 Further requirement for a body corporate or a co-operative society

A body corporate (except a statutory authority) or a co-operative society is an environmental organisation only if:

(a) its membership consists principally of bodies corporate; or

(b) it has at least 50 members who are individuals that are:

(i) regarded as financial members; and

(ii) entitled to vote at a general meeting of it; or

(c) the Minister for Environment, Sport and Territories has determined that, because of special circumstances, it does not have to meet either of the requirements in paragraph (a) or (b).

30-280 What must be on the register

(1) The Secretary to the Department of Environment, Sport and Territories must enter on the register each *environmental organisation, and the public fund it maintains, that he or she has been directed to enter by the Treasurer and the Minister for Environment, Sport and Territories.

(2) The Treasurer and the Minister may so direct the Secretary only if the Minister has notified the Treasurer that he or she is satisfied that an organisation is an *environmental organisation. The notification must be in writing.

(3) The direction must be in writing and must specify the day on which the organisation and public fund are to be entered on the register. The day must be the day on which the direction is given or a later day.

(4) The Treasurer and the Minister for Environment, Sport and Territories must have regard to the policies and budgetary priorities of the Commonwealth Government in deciding whether to give a direction.

30-285 Removal from the register

(1) The Treasurer and the Minister for Environment, Sport and Territories may direct the Secretary to the Department of Environment, Sport and Territories to remove an *environmental organisation, and the public fund it maintains, from the register.

(2) The direction must be in writing and must specify the day on which the organisation and public fund are to be removed from the register. The day must be the day on which the direction is given or a later day.

Subdivision 30-F - Register of cultural organisations

Guide to Subdivision 30-F

30-290 What this Subdivision is about

This Subdivision requires the establishment of a register of cultural organisations. Section 30-15 allows you to deduct a gift that you make to a fund that is on the register.

Table of sections

Operative provisions

30-295 Establishing the register

30-300 Meaning of cultural organisation

30-305 What must be on the register

30-310 Removal from the register

Operative provisions

30-295 Establishing the register

The Secretary to the Department of Communications and the Arts must keep a register of *cultural organisations.

Note: Section 30-305 sets out what details must be entered on the register.

30-300 Meaning of cultural organisation

(1) A cultural organisation is:

(a) a body corporate; or

(b) a trust; or

(c) an unincorporated body established for a public purpose by the Commonwealth, a State or a Territory;

that satisfies each requirement in this section.

(2) Its principal purpose must be the promotion of literature, music, a performing art, a visual art, a craft, design, film, video, television, radio, community arts, Aboriginal arts or movable cultural heritage.

(3) It must maintain a public fund:

(a) to which gifts of money or property for its principal purpose can be made; and

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

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

(4) It must use gifts made to the fund, and any money received because of such gifts, only for its principal purpose.

(5) It must not pay any of its profits or financial surplus, or give any of its property, to its members, beneficiaries, controllers or owners (as appropriate).

(6) It must have agreed to comply with any rules that the Treasurer and the Minister for Communications and the Arts make to ensure that gifts made to the fund are used only for its principal purpose.

(7) It must have agreed to give the Secretary to the Department of Communications and Arts, at intervals of 6 months, statistical information about gifts made to the public fund during the last 6 months.

30-305 What must be on the register

(1) The Secretary to the Department of Communications and the Arts must enter on the register each *cultural organisation, and the public fund it maintains, that he or she has been directed to enter by the Treasurer and the Minister for Communications and the Arts.

(2) The Treasurer and the Minister may so direct the Secretary only if the Minister has notified the Treasurer that he or she is satisfied that an organisation is a *cultural organisation. The notification must be in writing.

(3) The direction must be in writing and must specify the day on which the organisation and public fund are to be entered on the register. The day must be the day on which the direction is given or a later day.

(4) The Treasurer and the Minister for Communications and the Arts must have regard to the policies and budgetary priorities of the Commonwealth Government in deciding whether to give a direction.

30-310 Removal from the register

(1) The Treasurer and the Minister for Communications and the Arts may direct the Secretary to the Department of Communications and the Arts to remove a *cultural organisation, and the public fund it maintains, from the register.

(2) The direction must be in writing and must specify the day on which the organisation and public fund are to be removed from the register. The day must be the day on which the direction is given or a later day.

Subdivision 30-G - Index to this Division

Table of sections

30-315 Index

30-320 Effect of this Subdivision

30-315 Index

(1) The table in this section gives you an index to this Division.

(2) It tells you:

· each topic covered by this Division; and

· where in this Division you can find the detail about each topic.

Note: In the last column there are many references in this form: item 2.2.1. These refer to items in the tables in Subdivision 30-B.

30-320 Effect of this Subdivision

This Subdivision (except this section) has effect as if it were a *Guide.

Note: In interpreting an operative provision, a Guide may be considered only for limited purposes: see section 950-150.

[The next Division is Division 32.]

Division 32 - Entertainment expenses

Table of Subdivisions

Guide to Division 32

32-A No deduction for entertainment expenses

32-B Exceptions

32-C Definitions relevant to the exceptions

32-D In-house dining facilities (employer expenses table item 1.2)

32-E Anti-avoidance

32-F Special rules for companies and partnerships

Guide to Division 32

32-1 What this Division is about

You cannot deduct costs of providing entertainment. Nor can you deduct amounts for property that you use for providing entertainment. But there are exceptions.

Subdivision 32-A - No deduction for entertainment expenses

Table of sections

32-5 No deduction for entertainment expenses

32-10 Meaning of entertainment

32-15 No deduction for property used for providing entertainment

32-5 No deduction for entertainment expenses

To the extent that you incur a loss or outgoing in respect of providing *entertainment, you cannot deduct it under section 8-1. However, there are exceptions, which are set out in
Subdivision 32-B.

Note 1: Under section 8-1 you can deduct a loss or outgoing that you incur for the purpose of producing assessable income.

Note 2: If you have used your property in providing entertainment, you may not be able to deduct an amount for the property: see section 32-15.

Note 3: Section 32-75 deals with arrangements to avoid the operation of this section.

32-10 Meaning of entertainment

(1) Entertainment means:

(a) entertainment by way of food, drink or *recreation; or

(b) accommodation or travel to do with providing entertainment by way of food, drink or *recreation.

(2) You are taken to provide entertainment even if business discussions or transactions occur.

Note: These are some examples of what is entertainment:

· business lunches

· social functions.

These are some examples of what is not entertainment:

· meals on business travel overnight

· theatre attendance by a critic

· a restaurant meal of a food writer.

32-15 No deduction for property used for providing entertainment

To the extent that you use property in providing *entertainment, your use of the property is taken not to be for the *purpose of producing assessable income if section 32-5 would stop you deducting a loss or outgoing if you incurred it in the income year in providing the entertainment.

Note: Under some provisions of this Act, in order to deduct an amount for your property, you must have used the property for the purpose of producing assessable income.

Subdivision 32-B - Exceptions

Table of sections

32-20 The main exception - fringe benefits

32-25 The tables set out the other exceptions

32-30 Employer expenses

32-35 Seminar expenses

32-40 Entertainment industry expenses

32-45 Promotion and advertising expenses

32-50 Other expenses

32-20 The main exception - fringe benefits

Section 32-5 does not stop you deducting a loss or outgoing to the extent that you incur it in respect of providing *entertainment by way of *providing a *fringe benefit.

But this exception does not apply to the extent that the taxable value of the *fringe benefit is reduced under section 63A of the Fringe Benefits Tax Assessment Act 1986.

Note 1: You may be able to deduct losses or outgoings that are fringe benefits under section 51AEA, 51AEB or 51AEC of the Income Tax Assessment Act 1936. If you do, then you cannot deduct them under section 8-1 (about general deductions) and so this section is not relevant.

Note 2: There are other exceptions for a loss or outgoing you incur in providing a benefit that would be a fringe benefit if it were not an exempt benefit: see items 1.6 and 1.7 of the table in section 32-30.

32-25 The tables set out the other exceptions

Section 32-5 does not stop you deducting a loss or outgoing to the extent that you incur it in respect of providing *entertainment as described in column 2 of an item of a table in this Subdivision.

However, if column 3 of that item applies, the exception in column 2 of that item does not.

32-30 Employer expenses

Note 1: In the case of a company, items 1.1, 1.2, 1.3, 1.5 and 1.8 cover directors of the company as if they were employees: see section 32-80.

Note 2: In the case of a company, items 1.1, 1.2, 1.3 and 1.5 cover directors, employees and property of another company that is a member of the same wholly-owned group: see section 32-85.

Note 3: Item 1.8 has a special operation for partnerships: see section 32-90.

32-35 Seminar expenses

32-40 Entertainment industry expenses

32-45 Promotion and advertising expenses

32-50 Other expenses

Subdivision 32-C - Definitions relevant to the exceptions

Table of sections

32-55 In-house dining facility (employer expenses table items 1.1 and 1.2)

32-60 Dining facility (employer expenses table item 1.3)

32-65 Seminars (seminar expenses table item 2.1)

32-55 In-house dining facility (employer expenses table items 1.1
and 1.2)

An in-house dining facility is a canteen, dining room or similar facility that:

(a) is on property you occupy; and

(b) is operated mainly for providing food and drink to your employees; and

(c) is not open to the public.

Note 1: In the case of a company, this definition also covers directors of the company as if they were employees: see section 32-80.

Note 2: In the case of a company, this definition also covers directors, employees and property of another company that is a member of the same wholly-owned group: see section 32-85.

32-60 Dining facility (employer expenses table item 1.3)

A dining facility is:

(a) a canteen, dining room or similar facility; or

(b) a cafe, restaurant or similar facility;

that is on property you occupy.

Note: In the case of a company, this definition also covers property of another company that is a member of the same wholly-owned group: see section 32-85.

32-65 Seminars (seminar expenses table item 2.1)

(1) Seminar includes a conference, convention, lecture, meeting (including a meeting for the presentation of awards), speech, “question and answer session”, training session or educational course.

(2) In working out whether a *seminar goes for at least 4 hours the following are taken not to affect the seminar’s continuity, nor to form part of it:

(a) any part of the seminar that occurs during a meal;

(b) any break during the seminar for the purpose of a meal, rest or *recreation.

(3) A *seminar is a business meeting if its main purpose is for individuals who are (or will be) associated with the carrying on of a particular *business to give or receive information, or discuss matters, relating to the business.

However, the *seminar is not a business meeting if it:

(a) is organised by (or on behalf of) an employer solely for either or both of these purposes:

(i) training the employer and the employer’s employees (or just those employees) in matters relevant to the employer’s *business (or prospective *business);

(ii) enabling the employer and the employer’s employees (or just those employees) to discuss general policy issues relevant to the internal management of the employer’s *business; and

(b) is conducted on property that is occupied by a person (other than the employer) whose *business includes organising seminars or making property available for conducting seminars.

Note 1: In the case of a company, subsection (3) covers directors of the company as if they were employees: see section 32-80.

Note 2: In the case of a company, paragraph (3)(b) also covers property of another company that is a member of the same wholly-owned group: see section 32-85.

Note 3: Subsection (3) has a special operation for partnerships: see section 32-90.

Subdivision 32-D - In-house dining facilities (employer expenses table item 1.2)

Table of sections

32-70 $30 is assessable for each meal provided to non-employee in an in-house dining facility

32-70 $30 is assessable for each meal provided to non-employee in an in-house dining facility

(1) Your assessable income includes $30 for a meal you provide in an *in-house dining facility in the income year to an individual other than your employee, but only if:

(a) you incur a loss or outgoing in respect of providing the meal; and

(b) because of item 1.2 of the table in section 32-30,
section 32-5 does not stop you deducting the loss or outgoing under section 8-1 (which deals with general deductions); and

(c) the loss or outgoing is one that you can deduct under
section 8-1 for the income year or some other income year.

(2) However, you can choose not to include in your assessable income $30 for each meal you provide in the *in-house dining facility in the income year to an individual other than your employee.

Note: If you do choose, you cannot rely on item 1.2 of the table in
section 32-30 as a basis for deducting a loss or outgoing you incur in respect of providing a meal.

(3) You must choose by the day you lodge your *income tax return for the income year, or within a further time allowed by the Commissioner.

Subdivision 32-E - Anti-avoidance

Table of sections

32-75 Commissioner may treat you as having incurred entertainment expense

32-75 Commissioner may treat you as having incurred entertainment expense

If:

(a) you incur a loss or outgoing under an *arrangement; and

(b) someone provides *entertainment under the arrangement to you or someone else; and

(c) section 32-5 would have stopped you deducting the loss or outgoing under section 8-1 (which deals with general deductions) if you had incurred it in respect of providing that entertainment;

this Division applies to you as if you had incurred the loss or outgoing in providing that entertainment, to the extent (if any) that the Commissioner thinks reasonable.

Note: This means that section 32-5 will prevent you from deducting the loss or outgoing under section 8-1 unless an exception applies.

Example: A company pays $1,000 to sponsor a football game. Under the same arrangement, the company is given a viewing box at the game. To the extent the Commissioner thinks reasonable, he or she can treat the company as having incurred the $1,000 in providing entertainment.

Subdivision 32-F - Special rules for companies and partnerships

Table of sections

32-80 Company directors

32-85 Directors, employees and property of wholly-owned group company

32-90 Partnerships

32-80 Company directors

In the case of a company, these provisions cover directors of the company as if they were the company’s employees:

item 1.1 (exception for *in-house dining facilities) of the table in section 32-30;

item 1.2 (exception for *in-house dining facilities) of the table in section 32-30;

item 1.3 (exception for *dining facilities) of the table in section 32-30;

item 1.5 (exception for recreational facilities) of the table in section 32-30;

item 1.8 (exception for providing your employee with an allowance) of the table in section 32-30;

section 32-55 (which defines in-house dining facility );

subsection 32-65(3) (which defines business meeting ).

32-85 Directors, employees and property of wholly-owned group company

Employees and directors of group company

(1) In the case of a company, these provisions cover directors and employees of another company that is a member of the same *wholly-owned group as if they were the company’s own directors and employees:

item 1.1 (exception for *in-house dining facilities) of the table in section 32-30;

item 1.2 (exception for *in-house dining facilities) of the table in section 32-30;

item 1.3 (exception for *dining facilities) of the table in section 32-30;

item 1.5 (exception for recreational facilities) of the table in section 32-30;

section 32-55 (which defines in-house dining facility );

subsection 32-60(1) (which defines dining facility );

paragraph 32-65(3)(b).

Property occupied by group company

(2) Those provisions also cover property occupied by that other company as if the company occupied that property.

32-90 Partnerships

In the case of a partnership:

• item 1.8 (exception for providing employee with an allowance) of the table in section 32-30; and

• subsection 32-65(3) (which defines business meeting );

apply to a partner in the same way as they apply to an employee of the partnership, but only for the purposes of calculating, in accordance with section 90 of the Income Tax Assessment Act 1936, the partnership’s net income or partnership loss.

[The next Division is Division 34.]

Division 34 - Non-compulsory uniforms

Table of Subdivisions

Guide to Division 34

34-A Application of Division 34

34-B Deduction for your non-compulsory uniform

34-C Registering the design of a non-compulsory uniform

34-D Appeals from Industry Secretary’s decision

34-E The Register of Approved Occupational Clothing

34-F Approved occupational clothing guidelines

34-G The Industry Secretary

Guide to Division 34

34-1 What this Division is about

This Division is about deductions for the costs of non-compulsory uniforms.

Table of sections

34-3 What you need to read

34-3 What you need to read

Employees

(1) If you incur expenditure for your non-compulsory uniform, you need to read Subdivision 34-B (which is about deductions for your non-compulsory uniform), starting at section 34-10.

Employers

(2) If you have people working for you who want to deduct expenditure of that kind, you need to read:

Subdivision 34-C (which is about registering the design of a non-compulsory uniform), starting at section 34-25; and

Subdivision 34-D (which is about appeals from Industry Secretary’s decision), starting at section 34-40.

Subdivision 34-A - Application of Division 34

Table of sections

34-5 This Division applies to employees, PAYE earners and others

34-7 This Division applies to employers and others

34-5 This Division applies to employees, PAYE earners and others

(1) This Division applies not only to an individual who is an employee. It also applies to an individual who is not an employee, but who:

(a) is a *PAYE earner; or

(b) is not a *PAYE earner, but would be a *PAYE earner apart from paragraph (q) of the definition of salary or wages in subsection 221A(1) of the Income Tax Assessment Act 1936 (which excludes recipients of prescribed payments within the meaning of Division 3A of Part VI of that Act).

(2) If an individual is not an employee, but is covered by paragraph (1)(a) or (b), this Division applies to him or her as if:

(a) he or she were an employee; and

(b) the entity (the notional employer ) who pays (or is liable to pay) *PAYE earnings because of which he or she is (or would be) a *PAYE earner were his or her employer; and

(c) any other individual who receives (or is entitled to receive) *PAYE earnings:

(i) because of which the other individual is (or would be) a *PAYE earner; and

(ii) that the notional employer pays (or is liable to pay) to the other individual;

were the employee of the notional employer.

34-7 This Division applies to employers and others

If an entity is not an employer, but pays (or is liable to pay) *PAYE earnings, this Division applies to the entity as if:

(a) it were an employer; and

(b) an individual to whom the entity pays (or is liable to pay) *PAYE earnings were the entity’s employee.

Subdivision 34-B - Deduction for your non-compulsory uniform

Table of sections

34-10 What you can deduct

34-15 What is a non-compulsory uniform ?

34-20 What are occupation specific clothing and protective clothing ?

34-10 What you can deduct

(1) If you are an employee, you can deduct expenditure you incur in respect of your *non-compulsory uniform if:

(a) you can deduct the expenditure under another provision of this Act; and

(b) the *design of the uniform is registered under this Division when you incur the expenditure.

Note 1: This Division also applies to PAYE earners and other individuals who are not employees: see Subdivision 34-A.

Note 2: Employers apply to register designs of uniforms: see
Subdivision 34-C.

(2) You cannot deduct the expenditure under this Act if the *design is not registered at the time you incur the expenditure.

(3) However, this Division does not stop you deducting expenditure you incur in respect of your *occupation specific clothing or *protective clothing.

34-15 What is a non-compulsory uniform ?

What is a uniform ?

(1) A uniform is one or more items of clothing (including accessories) which, when considered as a set, distinctively identify you as a person associated (directly or indirectly) with:

(a) your employer; or

(b) a group consisting of your employer and one or more of your employer’s *associates.

When is a uniform non-compulsory ?

(2) Your uniform is non-compulsory unless your employer consistently enforces a policy that requires you and the other employees (except temporary or relief employees) who do the same type of work as you:

(a) to wear the uniform when working for your employer; and

(b) not to substitute an item of clothing not included in the uniform for an item of clothing included in the uniform when working for your employer;

except in special circumstances.

34-20 What are occupation specific clothing and protective clothing ?

(1) Occupation specific clothing is clothing that distinctively identifies you as belonging to a particular profession, trade, vocation, occupation or calling. To determine this, disregard any feature of the clothing that distinctively identifies you as a person associated (directly or indirectly) with:

(a) your employer; or

(b) a group consisting of your employer and one or more of your employer’s *associates.

Example: Occupation specific clothing includes a nurse’s uniform, a chef’s checked pants and a religious cleric’s ceremonial robes.

(2) Protective clothing is clothing of a kind that you mainly use to protect yourself, or someone else, from risk of:

(a) death; or

(b) *disease (including the contraction, aggravation, acceleration or recurrence of a disease); or

(c) injury (including the aggravation, acceleration or recurrence of an injury); or

(d) damage to clothing; or

(e) damage to an artificial limb or other artificial substitute, or to a medical, surgical or other similar aid or appliance.

Example: Protective clothing includes overalls, aprons, goggles, hard hats and safety boots, when worn to protect the wearer.

Meaning of disease

(3) Disease includes any mental or physical ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development and whether of genetic or other origin.

Subdivision 34-C - Registering the design of a non-compulsory uniform

Table of sections

34-25 Application to register the design

34-30 Industry Secretary’s decision on application

34-33 Written notice of decision

34-35 When uniform becomes registered

34-25 Application to register the design

(1) The employer of an employee who has, or will have, a *non-compulsory uniform can apply to the Secretary to the Department of Industry, Science and Tourism (the Industry Secretary ) for the *design of the uniform to be registered.

Note: This Division also applies to entities that are not employers: see Subdivision 34-A.

Meaning of design of a uniform

(2) The design of a *uniform includes features such as its colouring, construction, durability, ornamentation, pattern and shape.

Form of application

(3) The application must be:

(a) in writing; and

(b) in a form approved in writing by the *Industry Secretary; and

(c) accompanied by such information as the Industry Secretary requires.

34-30 Industry Secretary’s decision on application

Industry Secretary must decide to grant or refuse application

(1) After considering the application, the *Industry Secretary must decide to either grant or refuse the application.

Criteria for grant of application

(2) The *Industry Secretary must not decide to grant an application unless he or she is satisfied that the design meets the criteria set out in the *approved occupational clothing guidelines.

Note: The approved occupational clothing guidelines are created under section 34-55.

When Industry Secretary taken to have refused application

(3) The *Industry Secretary is taken to have refused an application if he or she does not make a decision by the later of the following times (the deadline ):

(a) the end of 90 days (the 90-day period ) after the day the Industry Secretary receives the application;

(b) if the Industry Secretary, by written notice given to the applicant within the 90-day period, requests the applicant to give further information about the application - the end of
90 days after the Industry Secretary receives the further information.

34-33 Written notice of decision

(1) If the *Industry Secretary makes a decision to grant or refuse an application under subsection 34-30(1) before the *deadline, the Industry Secretary must give the applicant written notice of the decision.

Reasons for refusal

(2) If the notice is a notice of a decision to refuse the application, it must also set out the reasons for the refusal.

Statements to accompany notice of decision

(3) The notice of the decision is to include the statements set out in subsections (4) and (5).

(4) There must be a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, an application may be made to the *AAT, by (or on behalf of) any entity whose interests are affected by the decision, for review of the decision.

(5) There must also be a statement to the effect that a request may be made under section 28 of that Act by (or on behalf of) such an entity for a statement:

(a) setting out the findings on material questions of fact; and

(b) referring to the evidence or other material on which those findings were based; and

(c) giving the reasons for the decision;

except where subsection 28(4) of that Act applies.

Failure does not affect validity

(6) If the *Industry Secretary fails to comply with subsection (4) or (5), that failure does not affect the validity of his or her decision.

34-35 When uniform becomes registered

If the *Industry Secretary decides to grant the application, the *design of the *uniform becomes registered on:

(a) the day the decision is made; or

(b) if the applicant requests - such earlier day as the Industry Secretary specifies.

Note: When the design becomes registered, an entry for the design is made on the Register of Approved Occupational Clothing.
Subdivision 34-E is about the Register.

Subdivision 34-D - Appeals from Industry Secretary’s decision

Table of sections

34-40 Review of decisions by the Administrative Appeals Tribunal

34-40 Review of decisions by the Administrative Appeals Tribunal

Applications may be made to the *AAT for review of a decision made by the *Industry Secretary under subsection 34-30(1).

Subdivision 34-E - The Register of Approved Occupational Clothing

Table of sections

34-45 Keeping of the Register

34-50 Changes to the Register

34-45 Keeping of the Register

(1) The *Industry Secretary must keep the Register of Approved Occupational Clothing, listing the designs that are required to be entered on the Register because of this Division.

Register to be open for inspection

(2) The *Industry Secretary must arrange for the Register to be available for inspection at any reasonable time by any person on request.

34-50 Changes to the Register

Removal of registration

(1) The *Industry Secretary must remove an entry for a *design from the Register of Approved Occupational Clothing if requested to do so by the employer who applied for the design to be registered.

Correcting errors and mistakes

(2) The *Industry Secretary may correct a clerical error or an obvious mistake in an entry for a design in the Register and, if the Industry Secretary does so, the correction takes effect on the day on which the design to which the entry relates was registered.

Subdivision 34-F - Approved occupational clothing guidelines

Table of sections

34-55 Approved occupational clothing guidelines

34-55 Approved occupational clothing guidelines

(1) The Treasurer must formulate written guidelines (the approved occupational clothing guidelines ) setting out criteria that *designs of uniforms must meet if the designs are to be registered.

Matters to be taken into account in making guidelines

(2) In making *approved occupational clothing guidelines, the matters to which the Treasurer is to have regard include:

(a) how distinctively a *uniform’s *design identifies the wearer as a person associated (directly or indirectly) with:

(i) the applicant for registering the uniform’s design; or

(ii) a group consisting of the applicant and one or more of the applicant’s *associates; and

(b) the nature of the *business or activities the applicant carries on.

Guidelines to be published

(3) The Treasurer must arrange for the *approved occupational clothing guidelines to be:

(a) published in the Gazette; and

(b) made available, without charge, to any interested entity.

Subdivision 34-G - The Industry Secretary

Table of sections

34-60 Industry Secretary to give Commissioner information about entries

34-65 Delegation of powers by Industry Secretary

34-60 Industry Secretary to give Commissioner information about entries

The *Industry Secretary must give the Commissioner information about entries of *designs on the Register of Approved Occupational Clothing if the Commissioner requests him or her to do so.

34-65 Delegation of powers by Industry Secretary

The *Industry Secretary may, by writing, delegate any or all of his or her functions and powers under this Division to an individual who holds or performs the duties of:

(a) a *Senior Executive Service office; or

(b) an office of Senior Officer Grade A, B or C;

in the Department of Industry, Science and Tourism.

[The next Division is Division 36.]