NO.049

 

GOVERNMENT RESPONSE TO CHARITIES DEFINITION INQUIRY

Today I am releasing the Government’s response to the Report of the Inquiry

into the Definition of Charities and Related Organisations.

As I noted when I released this Report in August 2001, the Inquiry has made

a significant contribution in simplifying such a complex legal and administrative

issue.

The Government has decided to enact a legislative definition of charity for

the purpose of the administration of Commonwealth laws and to adopt a majority

of the Inquiry’s recommendations for the definition. While the Commonwealth’s

predominant requirement for a definition of a charity is for the purposes of

deciding which organisations are eligible for tax relief, the definition will

apply for all Commonwealth legislation. I will be writing to each of the State

and Territory Treasurers to gauge their interest in achieving harmonisation

of laws defining charity.

The legislative definition of a charity will closely follow the definition

that has been determined by over four centuries of common law, but will provide

greater clarity and transparency for charities. The details of the definition

are attached. It will explicitly allow not-for-profit child care available to

the public, self-help bodies that have open and non-discriminatory membership

and closed or contemplative religious orders that offer prayerful intervention

for the public, to be charities. It will provide certainty to those organisations

operating in the sector while still providing the flexibility required to ensure

the definition can adapt to the changing needs of society.

I will ask the Board of Taxation to consult widely with the charitable sector

on an exposure draft of the legislation. The legislation is expected to begin

on 1 July 2004.

The Government has decided to establish a new category of deductible gift recipient

for charities whose principal activities promote the prevention and control

of harmful and abusive behaviour among humans. This will assist these charities

in attracting public support for their activities. The new category will apply

from 1 July 2003.

To ensure that there is no change to the taxation treatment of public hospitals

as a result of these decisions, the Government has also decided that fringe

benefits provided to employees whose duties are exclusively performed in, or

in connection with, a public hospital will continue to be subject to the $17,000

capped fringe benefits tax (FBT) exemption, whether or not those hospitals are

public benevolent institutions.

Charities and other not-for-profit organisations are pivotal members of society.

In order for them to be able to continue to contribute fully, they need to be

able to participate in a wide range of activities including, at times, commercial

activities. The Inquiry recommends that commercial purposes should not deny

charitable status where such purposes further, or are in aid of, the dominant

charitable purposes or where they are incidental or ancillary to the dominant

charitable purposes. The Government agrees with this recommendation, but is

concerned to ensure that the taxation concessions provided to charities are

not abused. The Government has therefore decided that from 1 July 2004, charities,

public benevolent institutions and health promotion charities will be required

to be endorsed by the Australian Taxation Office in order to access all relevant

taxation concessions. Depending on the character of the charity, these concessions

are the income tax exemption as a charity, refundable imputation credits, deductible

gift recipient status, the FBT rebate, the $30,000 capped FBT exemption and

GST concessions.

I am also announcing today that from 1 July 2004, an organisation endorsed

to access these tax concessions will have its status attached to its Australian

Business Number and be able to be publicly accessed through the Australian Business

Register. This will allow greater scrutiny of the use of taxation concessions

by charities and improve public confidence in the provision of taxation support

to the charitable sector.

The other changes are:

– The Income Tax Assessment Act 1997 to be amended with effect from

1 July 2003, to allow future additions to the list of organisations

specifically named as deductible gift recipients to be prescribed by regulation

rather than requiring a legislative amendment. This will allow continued

scrutiny by Parliament but will make the process less administratively costly

and more timely.

– Entities established in perpetuity by the Parliament to be allowed to

be endorsed as deductible gift recipients from 1 July 2003.

: They are currently denied endorsement because they cannot meet the

requirement that their constituent documents or governing rules require

that any surplus assets be transferred to another deductible gift recipient

if they are wound up.

– The GST law to be amended to ensure that the current GST concessions

for gift deductible entities apply only to deductible gift recipients and

not to any larger, non-charitable entity that operates the deductible gift

recipient.

: This will ensure that non-charitable entities are not able to access

the GST charity concessions and gives effect to the original policy intent

of the law.

The cost to revenue of the Government’s response is $2 million in 2004-05 and

$5 million in 2005-06 and 2006-07.

I would like to again thank the Inquiry members for their work in producing

the Report. The members of the Inquiry were the Hon. Ian Sheppard AO QC (chair),

Mr Robert Fitzgerald AM and Mr David Gonski.

29 August 2002

CANBERRA

Contact: Niki Savva

02 6277 7340

ATTACHMENT A

Elements of the definition of charity

(1) A charity is an entity (other than an entity excluded by

paragraph 9) that is not-for-profit and has a dominant purpose or purposes that

are charitable and, subject to paragraph 7, for the public benefit.

(2) In addition:

(a) where the entity has other purposes, those purposes must further, or

be in aid of, the dominant purpose or purposes, or be ancillary or incidental

to the dominant purpose or purposes; and

(b) the entity must have activities that further, or be in aid of, its charitable

purpose or purposes; and

(c) the entity must not have purposes, or engage in activities, that are

illegal; and

(d) the entity must not have a dominant purpose that is:

(i) advocating a political party or cause; or

(ii) supporting a candidate for political office; or

(iii) attempting to change the law or government policy.

Charitable purposes

(3) Charitable purposes means the following:

(a) the advancement of health;

(b) the advancement of education;

(c) the advancement of social and community welfare, including without limitation,

the care, support and protection of children and young people, including the

provision of child care services;

(d) the advancement of religion;

(e) the advancement of culture;

(f) the advancement of the natural environment;

(g) other purposes beneficial to the community.

(4) Advancement is taken to include protection, maintenance,

support, research, improvement or enhancement.

(5) In determining whether an entity has the purpose of the advancement of

religion, regard is to be had to the principles established by the High Court

in Church of New Faith v Commissioner of Pay-Roll Tax (1983) 154 CLR

120.

Public benefit

(6) To be for the public benefit, a purpose must:

(a) be aimed at achieving a universal or common good; and

(b) have practical utility; and

(c) be directed to the benefit of the general community or a sufficient section

of the community.

(7) The following entities do not have to have a dominant purpose or purposes

that are for the public benefit:

(a) open and non-discriminatory self-help groups that have open and non-discriminatory

membership;

(b) closed or contemplative religious orders that regularly undertake prayerful

intervention at the request of the public.

Open and non-discriminatory self-help group

(8) An open and non-discriminatory self-help group is a group

of individuals where:

(a) the group is established for the purpose of assisting individuals affected

by a particular disadvantage, discrimination or need that is not being met;

and

(b) the group is made up of, and controlled by, individuals affected by the

particular disadvantage, discrimination or need that is not being met; and

(c) any membership criteria relate to the purpose of the group; and

(d) membership of the group is open to any individual who satisfies criteria

referred to in paragraph (c).

Entities

(9) The following are excluded from being charities:

(a) an individual;

(b) a partnership;

(c) a political party;

(d) a superannuation fund;

(e) the Commonwealth, a State or Territory or a body controlled by the Commonwealth

or a State or Territory;

(f) a foreign government or a body controlled by a foreign government.

(10) For the purposes of paragraph 1, entity includes:

(a) a body corporate; and

(b) a corporation sole; and

(c) any association or body of persons whether incorporated or not; and

(d) a trust.

Not-for-profit

(11) An entity is taken to be not-for-profit if and only if:

(a) it is not carried on for the profit or gain of particular persons; and

(b) it is prevented, either by its constituent documents or by operation

of law, from distributing its assets for the benefit of particular persons

either while it is operating or upon winding up.