MurrayIan, ‘Looking for “Direct Assistance” in the Phrase “Public Benevolent Institution”’ (2012) 35(1) UNSW Law Journal103, 109–11.
2.
[2014] FCAFC 69 (13 June 2014). For a discussion of the first instance decision, see MartinFionaMurrayIan, ‘The “Direct” Requirement for a Public Benevolent Institution: Does the Hunger Project Case Confirm it Never Applied?’ (2013) 15(1) Journal of Australian Taxation161.
3.
Treasury (Cth), Tax Expenditures Statement2013 (January 2014) 12, 44, 115: fringe benefits tax exemption for PBIs estimated to be $1.34 billion for 2013–14; tax foregone on deductions for gifts to deductible gift recipients, of which PBIs form one of the most significant categories, is estimated to be $1.15 billion for 2013–14.
4.
Murray, above n 1, 108–9.
5.
(1931) 45 CLR 224.
6.
In particular, Australian Council of Social Service v Commissioner of Pay-roll Tax (NSW) (1985) 1 NSWLR 567.
7.
ATO, ‘Hunger Project Update’ (Non-profit News Service, No 0414, 17 July 2014).
8.
Fringe Benefits Tax Assessment Act 1986 (Cth) s 57A(1). Most benefits fall within a cap of $30 000 per employee, based on what would otherwise have been the grossed up value of the benefits provided.
9.
Commissioner of Taxation v Hunger Project Australia [2014] FCAFC 69 (13 June 2014) [66] (EdmondsPagoneWigneyJJ) (emphasis added).
Commissioner of Taxation v Hunger Project Australia [2014] FCAFC 69 (13 June 2014) [67] (EdmondsPagoneWigneyJJ).
14.
Ibid.
15.
Ibid [63]–[64] (EdmondsPagoneWigneyJJ).
16.
(2008) 236 CLR 204.
17.
It must be possible for the doer to undertake activities which provide relief, or, in the words of the ACNC, 'clear mechanisms for delivering the benevolent relief: ACNC, above n 12, 7 [6.5.2].
18.
Analogously, the ACNC has identified a need for ‘a relationship of collaboration and a common public benevolent purpose’: ibid, 7 [6.5.3].
19.
Word Investments (2008) 236 CLR 204, [37] (GummowHayneHeydonCrennanJJ).
20.
Arthur Sinodinos, ‘Integrity restored to Australia's tax system’ (Media Release, 14 December 2013).
21.
Australian Council for Overseas Aid v Federal Commissioner of Taxation (1980) 49 FLR 278 is the one example of a peak body being accepted as a PBI, although the Hunger Project case now indicates that an even broader connection than that accepted by the ATO on the basis of the ACOA case (see eg, ATO, Income Tax and Fringe Benefits Tax: Public Benevolent Institutions, TR 2003/5, 4 June 2003, 4, 16–17), will suffice.
22.
Productivity Commission (Cth), ‘Contribution of the Not-for-profit Sector’ (Research Report, 11 February 2010) 233–5.
23.
Commissioner of Pay-roll Tax (Vic) v Cairnmillar Institute (1990) 90 ATC 4752, 4767 (McGarvieJ); ATO, above n 21, [108], [119]–[120].
24.
(1980) 49 FLR 278.
25.
ATO, above n 21, [65].
26.
[2002] NTCA 11.
27.
Commissioners of Inland Revenue v Falkirk Temperance Café Trust (1926) 11 TC 353, 368–9 (Lord Blackburn).
28.
Re Pinion [1965] Ch 85, 107 (HarmanLJ), 107–8 (DaviesLJ) 109–111 (RussellLJ); Verge v Somerville [1924] AC 469, 499 (WrenburyLord). In the context of federal legislation, see also Charities Act 2013 (Cth) s 5 and div 2 pt 2.
29.
Murray, above n 1, 131–5.
30.
As to such preventative activities, see, eg, Industry Commission, Charitable Organisations in Australia, Report No 45 (1995) 62–64, citing Uniting Church of Queensland.
31.
Murray, above n 1.
32.
(1985) 1 NSWLR 567.
33.
Commissioner of Taxation v Hunger Project Australia [2014] FCAFC 69 (13 June 2014) [38]–[39] (EDmondsPagoneWigneyJJ).
34.
Ibid [39] (EdmondsPagoneWigneyJJ).
35.
See, eg, Australia's Future Tax System Review: Report to the Treasurer (2009) Part One, 5–6.
36.
Australian Association of Social Workers, ‘Ageing in Australia’ (Position Paper, April 2013) 4.
37.
Australian Institute of Family Studies (‘AIFS’), ‘Australian Families in a Rapidly Changing World’ (AIFS Research Directions 2012–15, 2012) 3.
38.
HealyJudith, Welfare Options: Delivering Social Services (Allen & Unwin, 1998) 15; Productivity Commission, above n 22, 238–9, 243–4.
39.
In the Canadian context, see, eg, BlicksteadRichard JLesterEleanorShapcottMichael, Collaboration in the Third Sector: From Co-opetition to Impact Driven Cooperation (Wellesley Institute, 2008) 9.
40.
See, eg, AIFS, above n 37, 3–4; Australia's Future Tax System Review, above n 35, Part One, 11.
41.
See, eg, Australia's Future Tax System Review, above n 35, Part One, 8.
42.
Productivity Commission, above n 22, 316.
43.
See, eg, the 2014–15 budget speech: Commonwealth, Parliamentary Debates, House of Representatives, 13 May 2014, 3590–8 (HockeyJoe Treasurer); JordanChris, Commissioner of Taxation, Keynote Address (Speech delivered at Institute of Chartered Accountants Australia Practice Forum, Sydney, 12 June 2014).
44.
See, eg, Productivity Commission, above n 22, 229, 238–9, 243–4; BlicksteadLesterShapcott, above n 39, 8.
45.
See, eg, Productivity Commission, above n 22, 229.
46.
Income Tax Assessment Act 1997 (Cth) s 30–15, item I special condition (a) of the table. See also ss 50–15, 50–50, 50–55, 50–65, 50–70.
AusAID, Commonwealth of Australia, List of Approved Funds (1 November 2013) <http://www.ausaid.gov.au/ngos/Pages/approved_funds.aspx>. As to the exception for developing country relief funds, see Income Tax Assessment Act 1997 (Cth) s 30–80(1) 9.1.1.
49.
income Tax Assessment Act 1997 (Cth) s 50–75.
50.
As to the application of the test, see, eg, Commissioner of Taxation v Word Investments Ltd (2008) 236 CLR 204, 239 [73] (GummowHayneHeydonCrennanJJ).
51.
There is a one – and preferably two – year track record requirement of overseas development or relief activities, for eligibility to be an approved organisation that operates the developing country relief fund.
52.
Not-for-profit Sector Tax Concession Working Group, ‘Fairer, Simpler and More Effective Tax Concessions for the Not-for-profit Sector: Final Report’ (May 2013) 36–7.
