On 13 May 2007 the Senate referred the Tax Laws Amendment (Public Benefit Test) Bill 2010 to the Senate Economics Committee for enquiry and report.

The Tax Laws Amendment (Public Benefit Test) Bill 2010 has been proposed by Senator Nick Xenophon to seek to require that religious and charitable instructions meet a Public Benefit Test to continue to justify their endorsements as Tax Concession Charities.

The Senate Economics Committee is now seeking written submissions. The submission closure date is 18 June 2010.

More information.

Purpose of the Bill

The explanatory memorandum of the Bill states its purpose as follows:

“The purpose of this Bill is to insert a public benefit test into the Income Tax Assessment Act 1997 which will require religious and charitable institutions seeking tax exemption to demonstrate public benefit through its aims and activities.

This Bill follows allegations from former members of the Church of Scientology about coerced abortions, false imprisonment, breaches of Occupational Health and Safety laws, stalking, harassment and extortion, to name but a few.

Given this, the tax exempt status of the Church of Scientology should be subject to a Public Benefit Test as to whether or not it is appropriate that it is afforded taxpayer support.

Similarly, any and all organisations which receive tax exempt status should be subject to this test.”

The proposed test

The Bill proposes the amendment of the Income Tax Assessment Act 1997 by the addition of the following:

“50-51 Public benefit test for items 1.1 and 1.2

Public benefit test

(1)    The regulations must formulate a test (to be known as the public benefit test) against which the aims and activities of an entity may be assessed.

(2)    The public benefit test must include the following key principles:

(a)    There must be an identifiable benefit arising from the aims and activities of an entity;

(b)    The benefit must be balanced against any detriment or harm;

(c)    The benefit must be to the public or a significant section of the public, and not merely to individuals with a material connection to the entity.

(3)    The public benefit test may contain provisions relating to the manner in which the test is to be applied to the aims and activities of an entity, as well as ancillary and incidental provisions.

(4)    The Minister must take all reasonable steps to ensure that regulations are made for the purposes of subsection (1) before 1 July 2010.

Entities must meet public benefit test

(5)    An entity covered by item 1.1 or 1.2 is not exempt from income tax unless the entity meets the public benefit test.

Application provision

The amendment made by this Schedule applies in relation to income years that commence on or after 1 July 2010.”

The need for your submission

In our assessment, the amending legislation is ill-conceived and is likely to have significant adverse implication for the charitable sector.

A copy of the submission that we have made as a firm is set out below. We suggest you make a submission.

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The danger of making a rule from an exception

Submissions in response the currently proposed Public Benefit Test for Charities

Tax Laws Amendment (Public Benefit Test) Bill 2010 (the “Bill”)

This is a submission in response to the Bill proposed by Senator Nick Xenophon.

We make this submission as lawyers who advise not for profit and charitable bodies on a daily basis about operations, including whether they are charities, in the Australian legal system.

Stated Purpose of the Bill

The Explanatory Memorandum of the Bill states its purpose as follows:

“The purpose of this Bill is to insert a public benefit test into the Income Tax Assessment Act 1997 which will require religious and charitable institutions seeking tax exemption to demonstrate public benefit through its aims and activities.

This Bill follows allegations from former members of the Church of Scientology about coerced abortions, false imprisonment, breaches of Occupational Health and Safety laws, stalking, harassment and extortion, to name but a few.

Given this, the tax exempt status of the Church of Scientology should be subject to a Public Benefit Test as to whether or not it is appropriate that it is afforded taxpayer support.

Similarly, any and all organisations which receive tax exempt status should be subject to this test.”

An exception not a rule

We submit that – a rule for all should never be made out of an exception of one. The exception should be dealt with, yes, but as an exception.

The meaning of charity in Australia

The meaning of Charity in Australia has consistently been affirmed by our courts as deriving from the Statute of Elizabeth[i] and the decision of the Privy Council in Commissioners for Special Purposes of the Income Tax v Pemsel [ii]. The majority of the High Court affirmed this in 2008 in Commissioner of Taxation of the Commonwealth of Australia v Word Investments Ltd.[iii]

Pemsel’s case and Word Investments are authority for the summary proposition that –

A public not for profit body will be charitable in Australia if its main purpose and activities are for:

• the relief of poverty;
• the advancement of education;
• the advancement of religion; or
• other purposes beneficial to the community.

We submit that the existing, robustly tested, current meaning of charity in Australia, as consistently applied and clarified through the courts, in response often to unique and exceptional circumstances, should be the test that remains.

Alternatively, if settled judicial authority is to be disturbed, legislative intervention of general application should only be after considered broad ranging consideration and debate. A response time of just over one month for submissions, with proposed application less than two months later is inappropriate.

“Public benefit” is already required

We submit that the requirement for a body to be for the public benefit is already a well settled implied part of the meaning of charity.

The Bill suggests that the relief of poverty, the advancement of religion or the advancement of education can no longer be assumed to be for the public benefit. This is a major philosophical change from pillars of public understanding that have long existed in Australia. Again if this is to be disturbed a broad ranging considered public debate must be had.

The meaning of relief of poverty, the advancement of religion or the advancement of education have also been considered and determined by the courts over the years and those decisions mean that not every organisation that says its exists for those purposes will be ultimately be considered to be so.

Existing facility to remove charitable endorsement

Endorsement as a Tax Concession Charity under the Income Tax Assessment Act 1997 is at the discretion of the ATO and it has the power to review or audit  endorsements at any time. It is already engaged in an active program of such reviews.

Endorsement as a charity requires that both the main purposes and activities of the organisation are charitable.

If significant detrimental activities are occurring the endorsement may be revoked based on the activities test. This revocation can be disputed through the courts and then it is up to courts to robustly examine the purposes and activities of the organisation to determine whether they are charitable.

The ATO, Tribunals and Courts take public policy considerations into account in making their decisions.

Broader implications need to be considered

It does not appear that broader implications for the charitable sector generally have been considered and particularly, in the short term at least, the cost to many diligently governed charities to apply limited resource to buy professional advice on the implications of such a change on their organisation, should not be underestimated.

Urgent broad brush changes often prove to be very expensive in the fixes required later.

Key legislative meaning should not be delegated to regulation

Finally we submit that if a legislative test for public benefit is to be adopted then the test should be set out in the legislation and not delegated to the regulation maker, the Treasury Department, which is not subjected the same robust debate as that which occurs in our houses of parliament.

Sincerely

Graham Corney, Andrew Lind and Alistair Macpherson

Partners – Corney & Lind Lawyers | http://www.corneyandlind.com.au | 27 May 2010

Additional commentary and background:

Andrew Lind recently presented another relevant recent paper to the annual CPA Not for Profit conference. A copy of that paper can be viewed on our Legal Resource Centre on our web site:

Not for Profit – Tax Endorsements, Audit, Reporting and Compliance Guidance

(http://www.corneyandlind.com.au/resource-centre/not-for-profit/keeping_tax_endorsements)

[ii] [1891] UKHL 1; [1891] AC 531 at 581-582

[iii] [2008] HCA 55 at para. 78

Our private independent schools in Australia have a lot to be proud of and have entered a new stage of maturity with a number of them seeking to birth new operations in overseas countries particularly in the Asian region.

Such a desire is admirable, however the differences in the landscape in  other national  jurisdictions  should not be underestimated.

Colleges need to consider the need to take good counsel before embarking on the jurisdictional differences they need to be aware of including:

• foreign investment rules
• corporate holdings
• property issues
• other cultural and legal realties
• taxation issues
• the implications for Australian charities doing business offshore

Those differences need the application of both wisdom and patient diplomacy.

Our expertise and experience in advising the School Law sector in Australia has now extended into  several  international jurisdictions including – China, Japan, Thailand and New Zealand.

It makes good sense to take some early wise counsel from our Schools Law team.

More information: www.corneyandlind.com.au

The time for comments on the draft report by the Productivity Commission on the contribution of the not for profit sector expires on 24 November 2009.

The draft report is a comprehensive document of 510 pages (without supporting material) and covers a wide range of factors that impact on the not-for-profit sector generally. It is one of a raft of such examinations of the sector either currently in place such as the Federal Government’s Taxation Review headed by Dr Ken Henry or recently completed such as the report released last December by the Senate Standing Committee on Economics into Disclosure regimes for charities and not-for-profit organisations.

The terms of reference for the this review require the Commission to have regard to Dr.Henry’s review and the report of the Inquiry into the Definition of Charities and other organisations commissioned in 2002 but not to examine in detail the matters covered by those reviews.

Non profit sector participants can expect to see far reaching implications emerge in the foreseeable future for the way they currently operate and are urged to seriously consider the draft report.

The Corney & Lind Lawyers Not for Profit and Charity Lawyers will continue to monitor the developments in the sector and will keep you informed. Our Non Profit and Charity Law specialist knowledge is widely recognised.

Go to the draft report.

Many Not for Profit (Non Profit) companies limited by guarantee should qualify as Special Purpose Companies with ASIC.

A Special Purpose Company qualifies for reduced annual review fees from $1000 pa to $40 pa (a not insignificant saving!)

You can advise ASIC that a company is a Special Purpose Company on the Form 201 Application for Registration. Alternatively, at a later date, you can lodge a Form 484 Change to company detailsThere are number requirements for a Not-for-profit company to qualify as a Special Purpose Company – and all 3 requirements are addressed in our template constitution for companies limited by guarantee.

A company that ceases to be a Special Purpose Company must notify ASIC of this change using a Form 484 B3.

It makes good sense to enage our specialist Not for Profit lawyers.