Edited version of your written advice

Authorisation Number: 1051334449032

Date of advice: 5 February 2018

Ruling

Subject: Income tax exemption

Question

Is the taxpayer an entity covered by item 2.1 of the table in section 50-10 of the Income Tax Assessment Act 1997 (ITAA 1997), so that its ordinary and statutory income is exempt from income tax under section 50-1 of the ITAA 1997?

Answer

Yes.

This ruling applies for the following period:

Income year ended 30 June 20XX

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

The taxpayer is an entity established in Australia that has at all relevant times undertaken its activities in Australia.

The objects of the taxpayer are stated in its’ current and draft constitution, that is, to promote employer involvement in certain employer sponsored scheme.

The governing and draft documents of the taxpayer prevent it from distributing assets and income directly or indirectly for the benefit of its members both while it is operating and when it winds up.

The taxpayer undertakes activities to promote its objects.

Relevant legislative provisions

Income Tax Assessment Act 1997

Reasons for decision

Unless otherwise stated, all legislative references are to the Income Tax Assessment Act 1997 (ITAA 1997).

Pursuant to section 50-1 and item 2.1 of the table in section 50-10, the ordinary income and statutory income of a society, association or club established for community service purposes (excluding political or lobbying purposes) is exempt from income tax provided the special conditions in section 50-70 are satisfied.

Subsection 50-70(1) requires that, to be exempt from income tax, an entity covered by item 2.1 of the table in section 50-10 must be a society, association or club that is not carried on for the purpose of profit or gain of its individual members (the non-profit requirement) and it either has a physical presence in Australia and, to that extent, incurs its expenditure and pursues its objectives principally in Australia; or meets the description and requirements in item 1 of the table in section 30-15; or is a prescribed society, association or club which is located outside Australia and is exempt from income tax in the country in which it is resident.

Subsection 50-70(2) provides that the entity must comply with all the substantive requirements in its governing rules (governing rules condition) and apply its income and assets solely for the purpose for which the entity is established (income and assets condition).

The threshold question in order to quality for exemption under section 50-1 as an entity covered by item 2.1 of the table in section 50-10 is whether the entity is a society, association or club established for community service purposes.

Established

The meaning of the word ‘established’ in former subsection 23(g) of the Income Tax Assessment Act 1936 (ITAA 1936) was considered in Cronulla Sutherland Leagues Club Limited v. FC of T 90 ATC 4215, where it was held that it referred not only to the circumstances existing when the entity was initially formed but also to its subsequent activities and to the circumstances of the particular year under consideration.

This is noted in paragraph 24 of the Taxation Ruling 2015/1 Income tax: special conditions for various entities whose ordinary and statutory income is exempt (TR 2015/1) where it is stated that, the purpose for which an entity is established is determined by a consideration of all the features of the entity. The main factors to be considered are the objects in the entity’s constituent documents and the activities of the entity after its formation.

Community service purposes

‘Community service’ is not defined in the Income Tax Assessment Act 1997 or Income Tax Assessment Act 1936.

Paragraph 3 of the Taxation Determination 93/190 Income tax: what is the scope of the exemption from income tax provided by subparagraph 23(g)(v) of the Income Tax Assessment Act 1936? (TD 93/190) provides explanations on the term 'community service purposes' that, it has a broader meaning than other purposes beneficial to the community which are also charitable. The Explanatory Memorandum to subparagraph 23(g)(v) confirms that the words 'community service purposes' are to be given a wide interpretation. Those words extend to a range of altruistic purposes that are not otherwise charitable, such as promoting, providing or carrying out activities, facilities or projects for the benefit or welfare of the community or any members of the community who have a particular need by reason of youth, age, infirmity or disablement, poverty, or social or economic circumstances.

To determine exemption from income tax for organisations that are established within the community, paragraph 4 of the TD 93/190 requires altruistic purposes to be an essential element of even the widest interpretation of ‘community service purposes’.

Paragraph 7 of the TD 93/190 states that, the purposes for which an organisation is established are demonstrated by its current operations and activities, which may show different purposes to those suggested by a cursory reading of its constitution: cf Royal Australasian College of Surgeons v. Federal Commissioner of Taxation (1943) 68 CLR 436.

In this case, objects of the taxpayer are stated as to promote employer involvement in certain employer sponsored scheme. The taxpayer, an independent body undertakes activities which encourage and promote employer involvement in the relevant scheme and maximise benefits of the members, they give effective to the taxpayer’s stated purpose. Accordingly, it is considered that the taxpayer is established for community service purposes.

Special Conditions

The taxpayer was established in Australia and has at all relevant times operated in Australia. Accordingly, the special conditions in section 50-70 will be satisfied if the non-profit requirement, governing rules condition and income and assets condition are satisfied.

Generally it is accepted that an association operates on a non-profit basis where, by operation of law or by its constituent document, the association is prevented from distributing its profits or assets among members while the association is operating and on its winding-up. The association's actions must, of course, be consistent with the prohibition.

In this case, taxpayer’s non-profit status was originally implied by operation of the legislation, under which it was established.

This condition will be satisfied when taxpayer’s draft governing documents are approved by its management Committee, its draft governing documents prevent it from distributing any portion of its income or assets directly or indirectly to its members both while it is operation and when it is winding up. This ensures that the funds and assets of the taxpayer are applied only to carry out its purposes and are not applied for the benefit of its members. Accordingly, the non-profit requirement is satisfied.

The governing rules condition is considered in paragraph 8 of the TR 2015/1, which lists down the following three questions to be asked:

● What are the governing rules of the entity? (further explanations in paragraphs 9 to 16 of the TR 2015/1)

● What are the substantive requirements in the governing rules? (further explanations in paragraphs 17 to 20 of the TR 2015/1)

● At what time must the Association comply with all of the substantive requirements in its governing rules? (further explanations in paragraph 21).

In this case, current and draft governing documents of the taxpayer constitute its governing rules.

The substantive requirements in taxpayer’s governing rules are those set out in its current and draft governing documents, including rules such as those that:

● give effect to the objects and purposes of the taxpayer;

● set out the powers of the taxpayer;

● relate to the non-profit status of the taxpayer;

● set out membership eligibility;

● set out payment requirements for subscription and levies;

● set out complaints procedures;

● set out powers of the taxpayer’s Committee, composition of the Committee, election of the Committee members, meetings of the Committee;

● require the taxpayer to maintain a register of Committee members;

● set out requirements for records and accounts;

● relate to the cancellation of incorporation and winding-up of the taxpayer.

On the basis that, there is no fact that could otherwise indicate or suggest that the taxpayer does not comply with any of the substantive requirements in its governing rules, it is considered that the taxpayer meets the governing rule condition in subsection 50-70(2).

The income and assets condition is considered in paragraph 23 of the TR 2015/1, which requires the following two questions to be asked:

● what is the ‘purpose for which the entity is established’? (further explanations in paragraphs 24 to 29 of the TR 2015/1)

● has the entity applied its income and assets solely for the purpose for which the entity is established? (further explanations in paragraphs 30 to 36 of the TR 2015/1).

Paragraph 24 of the TR 2015/1 explains that, the ‘purpose for which the entity is established’ is determined by a consideration of all of the features of the entity. The main factors to be considered are the objects in the entity’s constituent documents, and the activities of the entity after its formation, up to the time at which the income and assets condition is applied. Other factors to consider include policies and plans, administration, finances, history and control, and any legislation governing the operation of the entity.

In this case, the taxpayer was established for promoting employer involvement in certain employer sponsored scheme.

Its current and draft governing documents are consistent with its establishment purposes, it conducts activities that are directly related to its stated objects, and its history characterises it the same. The taxpayer works to benefit its members by providing a common forum for trainings, updates, exchange of ideas and to preserve the benefit of members.

Meaning of ‘solely’ is provided in paragraphs 33 to 35 of the TR 2015/1 that, the entity must exclusively or only apply its income and assets for that purpose.

In this case, on the basis that, there is no fact that could otherwise indicate or suggest that the taxpayer does not apply its income and assets solely for its establishment purpose, the income and asset condition in subsection 50-70(2) is satisfied.

Therefore, the taxpayer is a non-profit entity and is established and operated for the purpose of promoting employer involvement in certain employer sponsored scheme and to safeguard members’ benefits; it meets the conditions as set out in section 50-70, and accordingly it qualifies as an exempt entity under item 2.1 of the table in section 50-10.