ATO Interpretative Decision
ATO ID 2013/60
Income tax
School building fund established and maintained by a government schoolThis ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Issue
Is a school building fund that is established and maintained by a government school an 'Australian Charities and Not-for-profit Commission (ACNC) type of entity' under section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997)?
Decision
No, the school building fund is not an 'ACNC type of entity'.
Facts
A government school establishes and maintains a school building fund solely for the purpose of providing money for the acquisition, construction or maintenance of buildings used by the school.
The school building fund is a public fund. The government school has its own Australian Business Number (ABN).
The school building fund is controlled by a management committee, which includes the school principal and a majority of other persons having a degree of responsibility to the community. The school building fund is not established by trust deed or other written declaration of trust.
Reasons for Decision
Subdivision 30-B of the ITAA 1997 sets out the funds, authorities and institutions which are eligible to receive deductible gifts.
In order for a fund to satisfy item 2.1.10 of the table in subsection 30-25(1) of the ITAA 1997:
- •
- it must be a public fund established and maintained solely for the purpose of providing money for the acquisition, construction or maintenance of a building used as a school;
- •
- the building must be used as a school by a government, a public authority or a non-profit society or association as described in Item 2.1.10; and
- •
- the fund must be registered under the Australian Charities and Not-for-profits Commission Act 2012 (ACNC Act 2012), or not be an ACNC type of entity as defined in the ITAA 1997.
Section 995-1 of the ITAA 1997 defines the phrase 'ACNC type of entity' to mean:
an entity that meets the description of a type of entity in column 1 of the table in subsection 25-5(5) of the Australian Charities and Not-for-profits Commission Act 2012.
The term 'entity' is defined in section 960-100 of the ITAA 1997 to include 'a trust'. The term 'trust' is not defined in the ITAA 1997.
The school has not manifested an intention to create the school building fund as a separate trust. In the absence of the school entering into a trust deed or other written declaration of trust as part of the establishment of the school building fund, there is no indication that the school intended to create a trust over any particular property in these circumstances.
The school building fund is not a trust. The school building fund is not any other type of 'entity' listed in section 960-100 of the ITAA 1997. The school building fund is therefore not an 'entity' within the meaning of that term under section 960-100 of the ITAA 1997.
As a result, the school building fund is not an 'ACNC type of entity' under section 995-1 of the ITAA 1997.
Date of decision: 18 November 2013Year of income: Year ending 30 June 2014
Legislative References:
Income Tax Assessment Act 1997
Subdivision 30-B
subsection 30-25(1)
section 960-100
section 995-1
Related Public Rulings (including Determinations)
Taxation Ruling TR 2013/2
ATO ID 2013/61
ATO ID 2013/62
Keywords
school building funds
deductible gift recipients
associations, organisations and societies
entities and taxpayer groups
Date reviewed: 4 January 2018
ISSN: 1445-2782