Income Tax Assessment Amendment Regulations 2004 (No. 4)

Income Tax Assessment Amendment Regulations 2004 (No. 4) 2004 No. 330

EXPLANATORY STATEMENT

STATUTORY RULES 2004 No. 330

Issued by authority of the Minister for Revenue
and Assistant Treasurer

Income Tax Assessment Act 1997

Income Tax Assessment Amendment Regulations 2004 (No. 4)

Subsection 909-1(1) of the Income Tax Assessment Act 1997 (the Act) provides that the Governor-General may make regulations prescribing matters that the Act requires or permits to be prescribed, or are necessary or convenient to prescribe for carrying out or giving effect to the Act.

Subsection 995-1(1) of the Act defines a 'prescribed private fund' as a fund that is prescribed by the regulations for the purposes of the definition, but does not include any fund that has been declared by the Treasurer, in writing, not to be a prescribed private fund.

A prescribed private fund is a fund listed in the table under regulation 995-1.02 of the Income Tax Assessment Regulations 1997 (the Principal Regulations) on and from the date specified in that table.

Each fund is established and maintained for the purpose of providing money, property or benefits to a fund, authority or institution that is listed either by name or by type in a table of recipients for deductible gifts in Subdivision 30B of the Act.

Item 2 in the table to section 30-15 provides that a gift made to a prescribed private fund is deductible where the fund is established and maintained under a will or instrument of trust solely for:

(a)       the purpose of providing money, property or benefits to a fund, authority or institution gifts to which are deductible under item 1 of the table and for any purposes set out in the item of the table in Subdivision 30B that covers the fund, authority or institution; or

(b)       the establishment of such a fund, authority or institution.

The Australian Tax Office assesses funds that wish to be prescribed as 'prescribed private funds' against certain guidelines and then asks the Minister for Revenue and Assistant Treasurer to approve them for prescription in the Principal Regulations. The Minister for Revenue and Assistant Treasurer has approved the changes to the Principal Regulations described below.

The purpose of the Regulations is to amend regulation 995-1.02 to take account of changes approved by the Minister since 4 June 2003, when that regulation was last updated.

The Regulations give effect to name changes of prescribed private funds, by listing them under their new names and prescribing a period of effect for the funds listed under the old names in regulation 995-1.02.

The Regulations also correct errors in the names of prescribed private funds by replacing the incorrect name with the correct name, with the same date of effect, in regulation 995-1.02.

The Regulations also prescribe 83 new funds for the purposes of the definition of 'prescribed private fund' in regulation 995-1.02. The funds are listed in the Attachment. Each of the funds listed is a prescribed private fund on and from the date of effect specified in the Regulations.

The Act specifies no conditions that need to be met before the power to make the proposed Regulations may be exercised.

The Regulations commence on the date of their notification in the Gazette. However, they provide for different dates of effect, namely the dates of approval by the Government.

While these dates are earlier than the date of gazettal of the Regulations, subsection 48(2) of the Acts Interpretation Act 1901 is not contravened. Subsection 48(2) prohibits the retrospective operation of regulations that adversely affect the rights of, or impose liabilities upon, a person. The Regulations are beneficial to the institutions and funds concerned and to taxpayers making donations to them.

The Regulations are administrative in nature, rather than regulatory, so are of a minor or machinery of government nature and do not substantially alter existing arrangements. Accordingly, a Regulation Impact Statement is not mandatory and has not been prepared.

ATTACHMENT

Details of the proposed Income Tax Assessment Amendment Regulations 2004 (No. 4)

Regulation 1:       Names the regulations as the Income Tax Assessment Amendment Regulations 2004 (No. 4).

Regulation 2:       Provides that the regulations commence on the date of their notification in the Gazette.

Regulation 3:       Provides that Schedule 1 amends the Income Tax Assessment Regulations 1997.

Schedule 1:       Amendments

Item 1 amends the period of effect of the prescribed private fund listed at item 33 of regulation 995-1.02 to give effect to the fund's approved name change. The name 'Clipsal Fund' was formally changed on 25 November 2003 to 'The Gerard Fund'. The new name is reflected in new item 143 of regulation 995-1.02.

Item 2 amends the period of effect of the prescribed private fund listed at item 60 of regulation 995-1.02 to give effect to the fund's approved name change. The name 'JB Were Foundation' was formally changed on 12 December 2003 to 'Goldman Sachs JBWere Foundation'. The new name is reflected in new item 144 of regulation 995-1.02.

Item 3 removes the prescribed private fund 'MCS Charitable Foundation' listed at item 67 of regulation 995-1.02. The trustees of the Foundation resolved to wind up the trust on 5 January 2004. The Foundation is to be omitted rather than a period of operation stated because the Trustees stated that the MCS Charitable Foundation never operated.

Items 4, 6 and 7 substitute corrected fund names in the regulations at items 109, 127 and 138. The fund names were incorrectly cited as a result of minor technical errors in the transcribing of the items.

Item 5 amends the period of effect of the prescribed private fund listed at item 112 of regulation 995-1.02 to give effect to the fund's approved name change. The name 'The Bell Shakespeare Company Foundation' was formally changed on 20 April 2004 to 'The Bell Shakespeare Development Trust'. The new name is reflected in new item 162 of regulation 995-1.02.

Item 8 inserts the names and dates of effect of funds prescribed as prescribed private funds into regulation 995-1.02. The funds, their respective item numbers, and the dates of effect of their listing are: