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Edited version of your written advice
Authorisation Number: 1012746661485
Ruling
Subject: GST and Australian Business Number
Question 1
Can the funds continue to use another entity's ABN?
Answer
No
Relevant facts and circumstances
This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.
BACKGROUND
• You are an independent statutory body established under a State Act (the Act).
• You have been listed as a business name under another government entity and you use its ABN.
The Funds
• The funds are a type of trust fund created when communities raised money to assist certain individual and their families.
• There are now a number of similar funds in the State, administered by legally appointed trustees.
• The funds are administered in accordance with a Part of the Act. The funds represent monies raised from the public for the benefit of a certain community from appeals relating to significant commemorative events.
• A fund must be established if a member of the public intends to collect funds, receive subscriptions, or request donations for any purposes related to the purposes of the fund.
• You are is the trustee for a number of the funds:
(1) The Director is the successor in law to the Patriotic Funds Council of Victoria.
(2) Despite sub-section (1), if, immediately before the commencement of section 85 of the Veterans Act 2005 the Patriotic Funds Council of Victoria was a trustee of any patriotic fund or other trust, the Victorian Veterans Council becomes that trustee by operation of this sub-section.
Relevant legislative provisions
A New Tax System (Goods and Services Tax) Act 1999
Section 184-1
A New Tax System (Australian Business Number) Act 1999
Section 8
Section 41
Reasons for decision
Section 8 of the A New Tax System (Australian Business Number) Act 1999 (ABN Act) provides that
8 Are you entitled to an ABN? |
*You are entitled to have an Australian Business Number (*ABN) if:
(a) you are *carrying on an *enterprise in *Australia; or
(b) in the course or furtherance of carrying on an enterprise, you make *supplies that are *connected with Australia.
* an asterisk denotes a defined term in the Act
The term 'you' is defined in section 41 of the ABN Act to mean
you: if a provision of this Act uses the expression you, it applies to entities generally, unless its application is expressly limited.
Entity
'Entity' is defined in section 41 of the ABN Act to have the meaning given by section 184-1 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act).
Section 184-1 of the GST Act provides that the term 'Entity' includes a trust [(paragraph 184-1(1)(g)]. The note in this section states:
Note: The term 'entity' is used in a number of different but related senses. It covers all kinds of legal persons. It also covers group of legal persons, and other things, that in practice are treated as having a separate identity in the same way as a legal person
Trusts are given statutory status as entities in themselves under subsection 184-1(1) of the GST Act. At law, a trust is not a legal person. It is a collection of rights, duties and powers arising from the relationship to property held by the trustee for the benefit of the beneficiaries. The trust itself cannot be a party to legal proceedings nor have other obligations placed upon it. The trustee is the appropriate party. This is recognised in subsection 184-1(2) of the GST Act which provides that the trustee in that capacity is taken to be the trust entity. Consequently a trust entity is identified both by the trust relationship itself (the trust) and by reference to one of the necessary legal persons to that relationship (the trustee).
The GST Act does not create two separate entities - the trust and trustee - but rather the relevant entity is the trust, with the trustee standing as that entity if legal personality is required. A consequence of this is that there will only ever be one ABN registration for the trust and only one ABN issued irrespective of the number of trustees for the trust.
As stated, rights and obligations cannot be placed directly upon a trust. Therefore, the trustee is the legal person who may create rights and have obligations in relation to the trust property. The trustee is the legal person who is taken to be the trust entity and holds the ABN for the trust. In addition the trustee is obliged to meet obligations under the ABN Act such as the obligation to provide information under section 15.
ABN is a single unique business identifier to be used by entities that are entitled to it. An entity for ABN and GST purposes must apply for its own ABN if it carries on an enterprise. An entity cannot use an ABN that belongs to another entity.
The Act provides that the specific fund can be established if among other things the proposed trustees of the fund are approved by the authority.
For GST and ABN purposes, the fund in question is an entity which is a trust and is identified both by itself and its trustee.
The specific fund needs to apply for an ABN for carrying on its fund raising activities for the purposes under the Act.