I, Michael Sukkar, Assistant Treasurer, Minister for Housing and Minister for Homelessness, Social and Community Housing, make the following guidelines.
Dated 17 February 2022
Michael Sukkar
Assistant Treasurer Minister for Housing Minister for Homelessness, Social and Community Housing
Contents
Part 1—Preliminary
1 Name
2 Commencement
3 Authority
4 Schedules
5 Interpretation
6 Penalties
Part 2—Rules for establishing and maintaining public ancillary funds as deductible gift recipients
Division 1—General
7 Object of this Part
8 General principles
Division 2—Establishing a public ancillary fund
9 Purpose and objects of the fund
10 Not‑for‑profit
11 Operated only in Australia
12 Trustees
13 Change to governing rules
14 Trustee liability
Division 3—Operation of a public ancillary fund
15 Minimum annual distribution
16 Valuations
17 Keeping accounts
18 Financial statements
19 Audits
20 Investment strategy
21 Investment limitations
22 Uncommercial transactions and benefits to founders and donors
23 Fees and expenses
24 Donors
25 Compliance with all relevant laws
Division 4—Winding up, or ceasing to be, a public ancillary fund
26 Winding up, or ceasing to be, a public ancillary fund
27 Portability
Part 3—Application and transitional provisions
Division 1—Transitional rules for pre‑2012 public ancillary funds
28 Governing rules inconsistent with these guidelines
Division 2—Things done under the Public Ancillary Fund Guidelines 2011
29 Things done under the Public Ancillary Fund Guidelines 2011
This instrument is the Taxation Administration (Public Ancillary Fund) Guidelines 2022.
2 Commencement
(1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
The whole of this instrument The day after this instrument is registered.
Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.
(2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.
3 Authority
This instrument is made under the Taxation Administration Act 1953.
4 Schedules
Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
5 Interpretation
(1) In this instrument:
distribution has the meaning given by subsection 15(4).
governing rules has the same meaning as in the Australian Charities and Not‑for‑profits Commission Act 2012.
responsible person has the meaning given by subsections 12(7) and (8).
the Act means the Taxation Administration Act 1953.
trustee, if a fund has 2 or more trustees, means all of those trustees jointly, or any of them severally, as the case requires.
(2) Paragraph 13(1)(b) of the Legislation Act 2003 has effect in relation to this instrument as if the reference in that paragraph to the enabling legislation was a reference to Schedule 1 to the Act.
Note 1: The effect of modifying paragraph 13(1)(b) of the Legislation Act 2003 is that expressions have the same meaning in this instrument as in Schedule 1 to the Act as in force from time to time.
Note 2: Under section 3AA of the Act, an expression has the same meaning in Schedule 1 as in the Income Tax Assessment Act 1997.
(3) The interpretation rules in Division 950 of Income Tax Assessment Act 1997 also apply to this instrument.
Note 1: To find definitions of asterisked terms: see section 995‑1 of the Income Tax Assessment Act 1997. However, some defined terms may not be asterisked: see section 2‑15 of the Income Tax Assessment Act 1997.
Note 2: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
6 Penalties
If a person is liable to an administrative penalty under section 426‑120 in Schedule 1 to the Act because of a contravention of a provision of this instrument, the amount of the administrative penalty is the penalty that this instrument sets out, or the penalty worked out in accordance with this instrument, in relation to that provision of this instrument.
Note 1: The Commissioner may remit all or part of an administrative penalty: see section 298‑20 in Schedule 1 to the Act.
Note 2: An administrative penalty under section 426‑120 in Schedule 1 to the Act cannot be reimbursed from the fund: see subsection 426‑120(4) in Schedule 1 to the Act.
Part 2—Rules for establishing and maintaining public ancillary funds as deductible gift recipients
Note: This Part sets out the rules, made under section 426‑103 in Schedule 1 to the Act, a public ancillary fund and its trustee must comply with in order for the fund to be endorsed, and remain endorsed, as a deductible gift recipient.
Division 1—General
7 Object of this Part
The object of this Part is to set minimum standards for the governance and conduct of a *public ancillary fund and its trustee.
8 General principles
A *public ancillary fund must be established, maintained and wound up in accordance with the following principles:
(a) it is an *ancillary fund; and
(b) it is philanthropic in character; and
(c) it is a vehicle for philanthropy; and
(d) it is a trust that meets all of the following:
(i) it seeks to comply with all relevant laws and obligations; and
(ii) it is open, transparent and accountable to the public (through the Commissioner of Taxation, and if it is a *registered charity, the Commissioner of the Australian Charities and Not‑for‑profits Commission).
Note: This section is not intended to affect either Commissioner’s obligations to protect the confidentiality of a public ancillary fund’s information under privacy, and secrecy and disclosure laws.
Division 2—Establishing a public ancillary fund
9 Purpose and objects of the fund
(1) A *public ancillary fund must be established and maintained, under a will or an instrument of trust, as a valid trust.
(2) A *public ancillary fund must be established and maintained solely as described in item 2 of the table in section 30‑15 of the Income Tax Assessment Act 1997.
(3) A *public ancillary fund’s governing rules must:
(a) include objects that clearly set out the purposes of the fund; and
(b) require that, on the fund winding up or ceasing to be a public ancillary fund, its net assets must be provided to a recipient described in paragraph (a) of item 2 of the table in section 30‑15 of the Income Tax Assessment Act 1997.
Note: Paragraph (a) of item 2 of the table in section 30‑15 provides that the sole purpose of an ancillary fund must be to provide money, property or benefits to a fund, authority or institution, gifts to which are deductible under item 1 of that table.
10 Not‑for‑profit
(1) A *public ancillary fund must be established and operated as a not‑for‑profit entity.
(2) A *public ancillary fund’s governing rules must clearly set out that it is established and operated as a not‑for‑profit entity.
11 Operated only in Australia
(1) A *public ancillary fund must be established and operated only in Australia.
(2) However, subsection (1) does not prevent a *public ancillary fund from making a distribution to an eligible *deductible gift recipient that operates outside Australia.
12 Trustees
(1) The trustee of a *public ancillary fund must exercise the same degree of care, diligence and skill that a prudent individual would exercise in managing the affairs of others.
(2) At all times, a majority of the individuals involved in the decision‑making of a *public ancillary fund must be responsible persons.
Note: This requirement is similar to (but stricter than) the requirement applying to private ancillary funds (see Taxation Administration (Private Ancillary Fund) Guidelines 2019).
(3) A responsible person must be an active director of the trustee or an active member of any other controlling body of the fund.
(4) The trustee, or any other controlling body of the fund, must not exercise any discretion or power while subsections (2) and (3) are not being complied with, except:
(a) to appoint a new trustee; or
(b) to protect the property of the fund; or
(c) to deal with an urgent matter that cannot be postponed.
(5) Subsections (2), (3) and (4) do not apply to a *public ancillary fund that has the public trustee of a State or Territory as its trustee.
(6) An individual must not be a director of a trustee, or a member of any other controlling body of the fund, if the individual has been convicted of a taxation offence (within the meaning of Part III of the Act) that is an indictable offence. If an existing director or member is convicted of such an offence, the individual must cease to be a director within 1 month after the conviction.
(7) A responsible person is an individual with a degree of responsibility to the Australian community as a whole, and includes an individual before whom a statutory declaration may be made.
Note: Generally, individuals who are accepted as having a degree of responsibility to the community as a whole are known to a broad section of the community because they perform a public function or they belong to a professional body which has a professional code of ethics and rules of conduct. Individuals who have received formal recognition from the Government for their services to the community (for example, an Order of Australia award) will also usually have the requisite degree of responsibility. For further information see Taxation Ruling TR 95/27 which can be viewed on the Australian Taxation Office’s website (http://www.ato.gov.au).
Example: An individual before whom a statutory declaration may be made includes those who are licensed or registered to practise in a range of occupations such as a dentist, legal or medical practitioner; a nurse, a pharmacist, a bailiff, a bank officer or officer of a building society or credit union with 5 or more continuous years of service; a clerk of the court; a justice of the peace, a judge, a magistrate; a member of various professional associations including a member of Engineers Australia, a member of Chartered Secretaries Australia; a member of the various professional accounting associations in Australia; a marriage celebrant, mayors, town clerks and members of Parliament; a government employee with 5 or more years of continuous service; a teacher employed on a full‑time basis at a school or tertiary education institution.
13 Change to governing rules
(1) The trustee must notify the Commissioner, in the *approved form, of any change to *public ancillary fund governing rules within 21 days of the change being made.
Note: Significant changes to a fund’s governing rules may affect the fund’s entitlement to remain endorsed as a deductible gift recipient.
Penalty: 5 penalty units.
(2) However, the trustee does not need to notify the Commissioner under subsection (1) if the trustee is required to notify the Commissioner of the Australian Charities and Not‑for‑profits Commission of the same information under Division 65 of the Australian Charities and Not‑for‑profits Commission Act 2012.
14 Trustee liability
The governing rules of a *public ancillary fund must prohibit the fund from indemnifying the trustee, or an employee, officer or *agent of the trustee, for a loss or liability attributable to:
(a) a deliberate act or omission known by the trustee, employee, officer or agent to be a breach of trust; or
(b) dishonesty of the trustee, employee, officer or agent; or
(c) gross negligence or recklessness of the trustee, employee, officer or agent.
Note: An administrative penalty under section 426‑120 in Schedule 1 to the Act cannot be reimbursed from the fund, see subsection 426‑120(4) in Schedule 1 to the Act.
Division 3—Operation of a public ancillary fund
15 Minimum annual distribution
(1) During each *financial year, a *public ancillary fund must make distributions of amounts that are in total equal to at least 4 per cent (minimum annual distribution rate) of the *market value of the fund’s net assets (as at the end of the previous *financial year) in accordance with this section.
Note 1: While net assets are used to determine the fund’s minimum distribution, the total distribution that must be made is not net of any amount (for example, expenses of the fund).
Note 2: The minimum annual distribution rate, for a financial year, may be lowered under subsections (3) and (7).
Penalty: 30 penalty units if the shortfall is greater than $1,000.
(2) Further to subsection (1), a *public ancillary fund must distribute at least $8,800 (or the remainder of the fund if that is worth less than $8,800) during a *financial year if any expenses of the fund in relation to that financial year are paid directly or indirectly from the fund’s assets or income.
Note: This means that if a fund’s expenses are met from outside the fund, its minimum annual distribution is the amount calculated under subsection (1). If any of a fund’s expenses are paid out of the fund’s assets or income, its minimum distribution is $8,800 or the amount calculated under subsection (1), whichever is greater.
(3) However, no distribution is required during the *financial year in which a *public ancillary fund is established or during the 4 financial years following the financial year in which the fund is established.
Note: While this instrument does not require a minimum annual distribution for newly established public ancillary funds, the trustee should still have regard to the purpose of the fund when deciding on an appropriate annual distribution during those early years.
(4) A distribution is the provision of money, property or benefits. Where a fund distributes property or benefits, the *market value of the property or benefit provided is to be used in determining whether the fund has complied with subsection (1).
Example 1: Where a public ancillary fund makes a gift of land to a public benevolent institution, it would include the market value of the land in calculating how much it has distributed.
Example 2: Where a public ancillary fund grants a lease of office space to an eligible deductible gift recipient at a discount to the market price, the fund is providing a benefit the market value of which is used in calculating how much it has distributed. The fund may determine the market value as an amount equal to the discount.
Example 3: Where a public ancillary fund invests in a social impact bond that is issued by an eligible deductible gift recipient and has a return that is less than the market rate of return on a similar corporate bond issue, the fund is providing a benefit the market value of which is used in calculating how much it has distributed. The fund may determine the market value as an amount equal to the interest saved in the financial year by the deductible gift recipient from issuing the bond at a discounted rate of return.
Example 4: Where a public ancillary fund lends money to an eligible deductible gift recipient at a discount to the interest rate which would be charged on a comparable loan sourced from a financial institution at arm’s length, the fund is providing the borrower with a benefit equal to the market value of the interest forgone in the financial year by the lender because the borrower was not charged an arm’s length rate of interest.
Example 5: Where a public ancillary fund guarantees a loan provided by a financial institution to an eligible deductible gift recipient, the fund is providing a benefit the market value of which is used in calculating how much it has distributed. The fund may determine market value as an amount equal to the discount to the interest rate which would otherwise be charged on a comparable arm’s length unsecured loan sourced from that financial institution.
Example 6: Continuing example 5, if the deductible gift recipient defaults on the loan and the fund is called on under the guarantee to make a payment to the financial institution on behalf of the deductible gift recipient, the payment is also a distribution (being the provision of money, property or benefits).
Note: The Commissioner may approve safe harbour valuation methodologies to assist trustees in calculating the market value of a benefit provided to a deductible gift recipient—see Subdivision 960‑M of the Income Tax Assessment Act 1997.
(5) If the Commissioner requests the trustee to rectify a shortfall in the distribution for a *financial year, the trustee must comply with the request within 60 days.
Penalty: 10 per cent of the shortfall as at the end of the 60 days reduced, but not below nil, by any penalty under subsection (1).
(6) A distribution made to rectify a contravention of subsection (1) does not count towards compliance with that subsection for a later year in which the rectification occurs.
Accessing a lower minimum distribution rate for a financial year
(7) Upon application, in the *approved form, the Commissioner may reduce (but not to zero) the minimum annual distribution rate for a fund for a *financial year. The reduction may be subject to any conditions the Commissioner thinks fit.
(8) The Commissioner may reduce the minimum annual distribution rate only if the Commissioner is satisfied that there are circumstances that warrant the Commissioner reducing the rate, having regard to the matters listed in subsection (10).
(9) The Commissioner may reduce the minimum annual distribution rate at any time, including after the relevant financial year has ended.
(10) In determining whether, and by how much to reduce the rate, the Commissioner must have regard to:
(a) the purpose and object of the fund; and
(b) the general market conditions in Australia; and
(c) the past, current and expected levels of returns from the fund’s investments; and
(d) the long‑term impact on the assets of the fund from not reducing the rate for a *financial year; and
(e) the level of distributions made by the fund in previous financial years; and
(f) the investment strategy and distribution strategy of the fund; and
(g) the size of the fund; and
(h) the compliance history of the fund and the trustee; and
(i) the fees and expenses of the fund; and
(j) the terms and other circumstances relating to any gift to the fund under a will; and
(k) any other matter the Commissioner considers relevant.
Note: Having regard to general market conditions in Australia could include reviewing the Reserve Bank of Australia’s target for the cash rate (which is the overnight money market interest rate), the base interest rate, current returns of other ancillary funds (year on year), and the performance of approved stock exchanges. It could also include examining changes in conditions over time.
(11) A *public ancillary fund that is dissatisfied with a decision of the Commissioner covered by subsection (12) may object against the decision in the manner set out in Part IVC of the Act.
(12) This subsection covers the following decisions of the Commissioner:
(a) a decision not to reduce the annual distribution rate under subsection (7) (after receiving an application as described in that subsection);
(b) a decision not to reduce the annual distribution rate under subsection (7) to the extent requested in an application (as described in that subsection);
(c) a decision to impose a condition on access to a reduced annual distribution rate under subsection (7).
16 Valuations
(1) The *market value of a *public ancillary fund’s assets (other than land) must be estimated at least annually.
Note: See section 2B of the Acts Interpretation Act 1901 for the meaning of ‘land’.
(2) The *market value of land must be estimated at intervals of no more than 3 *financial years. Except as otherwise provided by this section, each estimate of the market value of land is to be used until a new estimate is obtained.
(3) Subject to subsections (4) and (7), the trustee may itself estimate the *market value or arrange for a qualified valuer or another appropriate entity to make an estimate.
Note 1: It is not intended that making or arranging for an estimate of market value be onerous or expensive. However, it may be prudent for a trustee to consider using a qualified valuer if the value of an asset represents a significant proportion of the fund’s value or if the nature of the asset means that a valuation is likely to be difficult or complex.
Note 2: The trustee may ask the Commissioner to undertake a valuation. The Commissioner may charge the trustee for undertaking a valuation, see section 359‑40 in Schedule 1 to the Act.
(4) However, the *market value of land must be estimated by a qualified valuer or by the Commissioner.
(5) An estimate must be of the *market value as at the end of the relevant *financial year.
(6) An estimate must be conducted within 2 months before or after the end of the relevant *financial year for each asset unless to do so would be unnecessarily onerous and expensive. All estimates must be completed no later than before the fund is required to give to the Commissioner the funds *income tax return for the relevant *financial year.
Note: A public ancillary fund is required to lodge an income tax return even if it is exempt from income tax. The Commissioner will approve an appropriate income tax return form for public ancillary funds.
(7) If the Commissioner considers an estimate of the *market value of any asset to be unreasonable, the Commissioner may request the trustee to arrange for another estimate to be obtained in the manner the Commissioner stipulates. The trustee must comply with the request.
Note: The Commissioner may seek the trustee’s agreement to undertake the valuation or the trustee may ask the Commissioner to undertake the valuation. Where the Commissioner undertakes a valuation, the Commissioner may charge the trustee for undertaking that valuation, see section 359‑40 in Schedule 1 to the Act.
(8) Whoever makes the estimate must base it on reasonably objective and supportable data. The methodology and data used for an estimate must be documented in the fund’s records. Where an estimate is obtained from a qualified valuer, the trustee must also obtain from the valuer a written estimate which also sets out the valuation methodology and refers to any supporting materials used in making the estimate.
17 Keeping accounts
(1) The trustee of a *public ancillary fund must keep, or cause to be kept, proper accounts in respect of all of the fund’s receipts and payments and all financial dealings connected with the fund, and must retain those accounts for at least 5 years after the completion of the transactions or acts to which they relate.
Note: See also Subdivision 382‑B in Schedule 1 to the Act for rules about record‑keeping obligations of deductible gift recipients.
Penalty: 10 penalty units.
(2) The trustee must make the accounts available to the Commissioner on request.
Penalty: 10 penalty units.
18 Financial statements
(1) The trustee of a *public ancillary fund must prepare, or cause to be prepared, a financial report showing the fund’s financial position for each *financial year. The financial report must be prepared in accordance with this section.
Penalty: 10 penalty units.
(2) The financial report must be prepared in accordance with the *accounting standards.
Note: If a fund is required to prepare, and does prepare, a financial report in accordance with Subdivision 60‑C of the Australian Charities and Not‑for‑profits Commission Act 2012, it will have satisfied this section.
(3) All transactions (other than gifts of money) between a *public ancillary fund and a founder of the fund, a *relative of the founder, a donor to the fund, a *relative of the donor, the trustee, a director, officer, *agent, *member or employee of the trustee, or an *associate of any of these entities must be disclosed in the financial report.
(4) The financial statements must be prepared before the trustee is required to give to the Commissioner the fund’s *income tax return for the relevant *financial year.
(5) The trustee must make the financial report available to the Commissioner of Taxation on request, unless the financial report has already been given to the Commissioner of the Australian Charities and Not‑for‑profits Commission.
Penalty: 10 penalty units.
19 Audits
(1) In relation to each *financial year, the trustee of a *public ancillary fund must arrange for a registered company auditor (within the meaning of the Corporations Act 2001) to audit (in accordance with this section):
(a) the financial report of the fund; and
(b) compliance with this instrument by the fund and the trustee.
Penalty: 10 penalty units.
(2) Despite subsection (1), if the trustee is the public trustee of a State or Territory, it may have the Auditor‑General of that State or Territory undertake the audit.
(3) Despite subsection (1) and unless the Commissioner, by written notice, provides otherwise in relation to a particular *public ancillary fund, a fund that meets both of the following:
(a) revenue of less than $1 million for a financial year; and
(b) assets of less than $1 million for a financial year;
may instead have its financial report, and compliance with this instrument, for that year reviewed rather than audited.
(4) A reviewer must also be a registered company auditor (within the meaning of the Corporations Act 2001). However, an individual who is taken to be a registered company auditor under section 324BE of the Corporations Act 2001 is also taken to be a registered company auditor for the purpose of this subsection.
Note: Section 324BE has the effect of widening the class of individuals who can undertake a review to all members of a professional accounting body.
(5) The auditor or reviewer must undertake the audit or review, and provide the fund with a report, in accordance with the *auditing standards.
(6) The audit or review must be finalised before the fund is required to give to the Commissioner the fund’s *income tax return for the relevant *financial year.
(7) The trustee must make the report available to the Commissioner of Taxation on request, unless the report has already been given to the Commissioner of the Australian Charities and Not‑for‑profits Commission.
Penalty: 10 penalty units.
20 Investment strategy
(1) The trustee of a *public ancillary fund must prepare and maintain a current investment strategy for the fund in accordance with this section.
Penalty: 10 penalty units.
(2) An investment strategy must set out the investment objectives of the fund and detail the investment methods the trustee will adopt to achieve those objectives.
(3) An investment strategy must also reflect the purpose and circumstances of the fund and have particular regard to:
(a) the risk involved in making, holding and realising, and the likely return from, the fund’s investments, having regard to the fund’s objects and its expected cash flow requirements (including distribution requirements); and
(b) the composition of the fund’s investments as a whole, including the extent to which the investments are diverse or expose the fund to risks from inadequate diversification; and
(c) the liquidity of the fund’s investments, having regard to its expected cash flow requirements (including distribution requirements); and
(d) the ability of the fund to discharge its existing and prospective liabilities; and
(e) the investment restrictions imposed by *Australian laws; and
(f) the status of the fund as a *registered charity (if relevant); and
(g) material conflicts of interest (whether actual or perceived) in holding particular investments (including conflicts affecting individuals involved in the decision‑making of the fund); and
(h) the terms and other circumstances relating to any gift to the fund under a will.
(4) The trustee must implement the investment strategy, and must ensure that all investment decisions are made in accordance with it.
Penalty: 15 penalty units.
(5) The investment strategy (and a record of the associated decision‑making processes) must be available in writing so that the trustee, an auditor, a reviewer or the Commissioner can determine whether the fund has complied with this instrument and other *Australian laws.
Penalty: 10 penalty units.
21 Investment limitations
(1) The trustee of a *public ancillary fund must not *borrow money or maintain an existing borrowing of money.
Penalty: 30 penalty units.
(2) However, subsection (1) does not prohibit a trustee from *borrowing money if:
(a) the purpose of the borrowing is to enable the trustee to make a distribution, to a *deductible gift recipient, to comply with this instrument; and apart from the borrowing, the trustee would be unable to make the distribution; and
(b) the period of the borrowing does not exceed 90 days; and
(c) the borrowing, when made, would not result in total borrowings by the fund exceeding 10 per cent of the *market value of the fund’s assets.
(3) Subsection (1) also does not apply to the acquisition of a financial instrument excluded by the Commissioner, by written notice, from that subsection in relation to a fund.
(4) The trustee of a *public ancillary fund must ensure the fund’s investments are made and maintained on an *arm’s length basis, unless another provision of this instrument allows otherwise.
Penalty: 30 penalty units.
(5) The trustee of a *public ancillary fund must not give a security over, or in relation to, an asset of the fund.
Penalty: 30 penalty units.
(6) However, subsection (5) does not apply to:
(a) a financial instrument excluded by the Commissioner from that subsection in relation to a fund; or
(b) an agreement to guarantee the repayment of any money lent by an arm’s length creditor (including any related unpaid interest or fees) for the sole benefit of one or more *deductible gift recipients to which the fund may make a distribution.
(7) The trustee of a *public ancillary fund:
(a) must ensure the fund does not acquire an asset (except by way of gift) from; and
(b) must not make a loan or provide any other kind of financial assistance to;
a founder of the fund, a *relative of the founder, a donor to the fund, a *relative of the donor, the trustee, a director, officer, agent, *member or employee of the trustee, or an *associate of any of these entities except:
(c) by way of an arms’ length commercial transaction; or
(d) on terms each of which is more favourable to the fund than would otherwise be expected under an arms’ length transaction.
Penalty: 30 penalty units.
(8) The trustee of a *public ancillary fund must keep the assets of the fund separate from all other assets.
Penalty: 30 penalty units.
(9) However, subsection (8) does not prevent a licensed trustee company (within the meaning of the Corporations Act 2001) or the public trustee of a State or Territory from operating common funds for investment purposes.
(10) The trustee of a *public ancillary fund must ensure that the fund does not acquire an asset (except by way of gift) if the asset is a *collectable (or would be a collectable but for the asset not being used or kept mainly for an entity’s personal use or enjoyment). If the fund acquires such an asset by way of gift, it must sell or distribute the asset within 12 months after acquiring it.
Penalty: 30 penalty units.
(11) The trustee of a *public ancillary fund must ensure the fund does not *carry on a *business.
Penalty: An amount equal to 25 per cent of the net profit (if any) of the business for each *financial year during all or part of which the contravention continues.
(12) However, a trustee does not contravene subsection (11) in the following situations:
(a) merely because the fund’s passive investment activities, because of repetition, volume and regularity, mean that the fund is *carrying on a *business;
(b) the fund undertakes a public fundraising appeal.
Note: This subsection has the effect that the mere holding of, or dealing in, investments, such as shares or rental properties, for the purpose of deriving income that can be distributed to eligible deductible gift recipients, does not contravene subsection (11).
Example: A public fundraising appeal would including a public appeal for donations, a lamington drive, a raffle, and a charity ball.
22 Uncommercial transactions and benefits to founders and donors
(1) The trustee of *public ancillary fund must ensure the fund does not enter into any transaction that is uncommercial when entered into, unless the transaction is:
(a) with a *deductible gift recipient covered by item 1 in the table in section 30‑15 of the Income Tax Assessment Act 1997; and
(b) in the course or furtherance of the fund’s purpose.
Penalty: 30 penalty units.
(2) However, subsection (1) does not prevent the fund from entering into an uncommercial transaction on terms each of which is more favourable to the fund than would otherwise be expected under an arms’ length transaction.
(3) The trustee of a *public ancillary fund must ensure the fund does not *provide any benefit (except as set out in section 23), directly or indirectly, to:
(a) the trustee; or
(b) a *member, director, employee, *agent or officer of the trustee; or
(c) a donor to the fund; or
(d) a founder of the fund; or
(e) a *relative of an individual covered by paragraph (c) or (d); or
(f) an *associate of any of those entities (other than a *deductible gift recipient).
Penalty: An amount equal to the amount or value of the benefit provided.
23 Fees and expenses
The trustee of a *public ancillary fund may apply income or capital of the fund:
(a) to pay or reimburse the trustee for reasonable expenses incurred on behalf of the fund; and
(b) to pay fair and reasonable remuneration for the trustee’s services in administering the fund.
24 Donors
Note: A public ancillary fund is public in nature. This characteristic implies that it was and remains the intention of the founders or promoters of the fund that the public will contribute to the fund and that the public participates in the administration of the fund. These features of a public ancillary fund can be contrasted with those of a private ancillary fund where there is a close relationship between those who establish the fund, those who donate to it and those that operate the fund.
(1) The trustee of a *public ancillary fund must ensure the public is regularly invited to contribute to the fund.
Penalty: 30 penalty units.
Note 1: Due to the public nature of a public ancillary fund, it will be good governance for a trustee to review non‑binding preferences and other feedback provided by donors, before making distributions, unless the governing rules provide otherwise.
Note 2: A public ancillary fund may establish sub‑funds in relation to donations from particular donors. However, the fund cannot be under any obligation to comply with requests from those donors.
(2) The fund must:
(a) issue a receipt for every gift it receives; and
(b) include on the receipt the name and *ABN of the fund, the name of the donor and a statement that the receipt is for a gift received by the fund.
25 Compliance with all relevant laws
The trustee of a *public ancillary fund must ensure the trustee and the fund comply with all relevant *Australian laws, all legally binding directions given to the trustee by the Commissioner and all the requirements contained in this instrument.
Division 4—Winding up, or ceasing to be, a public ancillary fund
26 Winding up, or ceasing to be, a public ancillary fund
If a fund is wound up, or ceases to be a *public ancillary fund, all of the fund’s net assets must be provided as described in paragraph (a) of item 2 of the table in section 30‑15 of the Income Tax Assessment Act 1997.
Note: see also subsection 9(3).
27 Portability
(1) With the agreement of the Commissioner, a *public ancillary fund may transfer assets to another *ancillary fund if:
(a) the public ancillary fund does one of the following:
(i) if the public ancillary fund operates sub‑funds—the fund transfers all of the net assets of one of more sub‑funds to that ancillary fund; or
(ii) otherwise—transfers all of its net assets to that ancillary fund; and
(b) the public ancillary fund has already complied with section 15 for that financial year (about minimum annual distributions); and
(c) none of the net assets referred to in paragraph (a) have been received from another ancillary fund during the 2 previous financial years.
(2) The Commissioner must not agree to a transfer of assets under subsection (1) if the transfer involves transferring assets contributed, either directly or indirectly, by the general public from a public ancillary fund to a private ancillary fund.
Part 3—Application and transitional provisions
Division 1—Transitional rules for pre‑2012 public ancillary funds
Note: This Division sets out transitional rules modifying how Part 2 applies to a public ancillary fund that was endorsed as a deductible gift recipient under item 2 in the table in section 30‑15 of the Income Tax Assessment Act 1997 at the end of 30 December 2011.
28 Governing rules inconsistent with these guidelines
(1) If:
(a) a *public ancillary fund does not have only trustees that are a *constitutional corporations; and
(b) the fund was a public ancillary fund that was endorsed as a *deductible gift recipient under item 2 in the table in section 30‑15 of the Income Tax Assessment Act 1997 at the end of 30 December 2011;
then subsection 12(3) does not apply to the fund. Instead, a majority of the active trustees must be responsible persons.
(2) If a *public ancillary fund had an existing borrowing on 30 December 2011, the fund may maintain that borrowing despite subsection 21(1). However, the fund may not alter the terms of the borrowing without the prior agreement of the Commissioner.
Division 2—Things done under the Public Ancillary Fund Guidelines 2011
Note: This Division sets out transitional rules modifying how Part 2 applies to a public ancillary fund to ensure a seamless transition between the Public Ancillary Fund Guidelines 2011 and this instrument.
29 Things done under the Public Ancillary Fund Guidelines 2011
(1) If:
(a) a thing was done for a particular purpose under the Public Ancillary Fund Guidelines 2011 as in force immediately before that instrument was repealed; and
(b) the thing could be done for that purpose under this instrument;
the thing has effect for the purposes of this instrument as if it had been done for that purpose under this instrument.
(2) Without limiting subsection (1), a reference in that subsection to a thing being done includes a reference to a notice, application or other instrument being given or made.
30 Carry forward credit for distributions in excess of minimum
(1) This section applies to a *public ancillary fund if the fund exceeded its annual minimum distribution for the *financial years 2019‑20 to 2020‑21, as calculated under subsection (2), by more than 4.
(2) Work out how much a *public ancillary fund exceeded its annual minimum distribution for the *financial years 2019‑20 to 2020‑21 as follows:
Method statement
Step 1. Work out the fund’s actual distribution for the 2019‑20 financial year by dividing the fund’s distributions made in that financial year by the *market value of the fund’s net assets (as at the end of the previous financial year). The result should be expressed as a percentage and rounded to the nearest whole number.
Step 2. Work out the fund’s actual distribution for the 2020‑21 financial year by dividing the fund’s distributions made in that financial year by the market value of the fund’s net assets (as at the end of the previous financial year). The result should be expressed as a percentage and rounded to the nearest whole number.
Step 3. Add the result of step 1 with the result of step 2.
Step 4. Reduce the result of step 3 by 8, but not so as to reduce the result to an amount less than nil. The result is how much a *public ancillary fund exceeded its annual minimum distribution for the financial years 2019‑20 to 2020‑21.
(3) Where this section applies, the minimum annual distribution rate for a *public ancillary fund the purposes of subsection 15(1) for a *financial year covered by subsection (4) of this section is 3 per cent.
(4) The following are the *financial years covered by this subsection for a *public ancillary fund:
(a) the 2021‑22 financial year; and
(b) the 2022‑23 financial year; and
(c) a subsequent financial year or years for each amount of 2 the result of the method statement in subsection (2) exceeds 4.
Example: If the result of the method statement in subsection (2) is 7 for a public ancillary fund, the 2023‑24 financial year is also covered by subsection (4).
(11) A *private ancillary fund that is dissatisfied with a decision of the Commissioner covered by subsection (12) may object against the decision in the manner set out in Part IVC of the Act.
(12) This subsection covers the following decisions of the Commissioner:
(a) a decision not to reduce the annual distribution rate under subsection (7) (after receiving an application as described in that subsection);
(b) a decision not to reduce the annual distribution rate under subsection (7) to extent requested in an application (as described in that subsection);
(c) a decision to impose a condition on access to a reduced annual distribution rate under subsection (7).