Issued by authority of the Assistant Treasurer

Income Tax Assessment Act 1997

Income Tax Assessment Amendment Regulations 2008 (No. 2)

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 be prescribed 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 or his delegate, in writing, not to be a prescribed private fund.

A prescribed private fund is a fund listed in the table in Schedule 3 to the Income Tax Assessment Regulations 1997 (the Principal Regulations). Regulation 995‑1.02 of those Regulations provide for the specification of prescribed private funds on and from the date specified in that table, or for the period specified in that table.

The purpose of the Regulations is to amend the table in Schedule 3 to take account of changes approved since 16 November 2006, when that table was last updated.

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 30-B of the Act.

Item 2 in the table to subsection 30-15(2) of the Act 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 30-B that covers the fund, authority or institution; or

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

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

The Regulations give effect to 10 name changes of prescribed private funds by consolidating their old and new names under the same item number.

The Regulations also remove 2 funds that are no longer prescribed private funds.

The Regulations also prescribe 151 new funds for the purposes of the definition of prescribed private fund. 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 Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulations commenced on the day after registration. However, they provide for different dates of effect for the funds, namely the dates of approval by the Government.

While these dates are earlier than the date of registration of the Regulations, subsection 12(2) of the Legislative Instruments Act 2003 is not contravened. Subsection 12(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, rather than regulatory, and therefore 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.

As the Regulations are a machinery of government and do not substantially alter existing arrangements, consultation was not required.

ATTACHMENT

Details of the Income Tax Assessment Amendment Regulations 2008 (No. 2)

Regulation 1: Names the Regulations as the Income Tax Assessment Amendment Regulations 2008 (No. 2).

Regulation 2: Provides that the Regulations commence on the day after registration.

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

Schedule 1: Amendments

Items [1] to [19]

The prescribed private fund listed as item 4 of the table in Schedule 3 to the Principal Regulations, with effect from 22 June 2001, formally changed its approved name from The Brencorp Foundation to the Scanlon Foundation which is currently listed as item 248. Both names are consolidated by item [1] and item 248 is omitted by item [17].

The prescribed private fund listed as item 19 of the table, with effect from 27 June 2001, formally changed its approved name from The Sarah and Baillieu Myer Family Foundation to The Yulgilbar Foundation. Both names are consolidated by item [2].

The prescribed private fund listed as item 59 of the table, with effect from 14 June 2002, formally changed its approved name from The JBWere Foundation to the Goldman Sachs JBWere Foundation, which is currently listed as item 142. Both names are consolidated by item [3] and item 142 is omitted by item [12].

The prescribed private fund listed as item 63 of the table, with effect from 14 June 2002, formally changed its approved name from the Leeuwin Estate Foundation to the Leeuwin Estate Charitable Foundation, which is currently listed as item 227. Both names are consolidated by item [4] and item 227 is omitted by item [15].

The prescribed private fund listed as item 86 of the table, with effect from 11 September 2002, formally changed its approved name from the Jackson McDonald Community Foundation to the Nola Criddle Foundation. Both names are consolidated by item [5].

The prescribed private fund listed as item 92 of the table, with effect from 11 November 2002, formally changed its approved name from the R.M. Brown Environmental Foundation to the Diversicon Environmental Foundation. Both names are consolidated by item [6].

The prescribed private fund listed as item 96 the table, with effect from 20 December 2002, formally changed its approved name from the Vittorio Romano 1 Foundation to the VM Romano Foundation which is currently listed as item 131. Both names are consolidated by item [7] and item 131 is omitted by item [10].

The Taranto Cultural Foundation, which is currently listed as item 109 of the table, was declared not to be a prescribed private fund under subsection 995‑1(1) of the Act. This has been given effect by item [8] with the Taranto Cultural Foundation having a period of effect finishing on 3 July 2007.

The prescribed private fund listed as item 111 of the table, with effect from 24 June 2003, formally changed its approved name from The Bell Shakespeare Company Foundation to The Bell Shakespeare Development Trust which is currently listed as item 160. Both names are consolidated under item [9] and item 160 is omitted by item [13].

The prescribed private fund listed as item 140 of the table, with effect from 23 October 2003, formally changed its approved name from The Sid Myer Family Foundation to The Sid and Fiona Myer Family Foundation which is currently listed as item 236. Both names are consolidated by item [11] and item 236 is omitted by item [16].

The Orica Community Foundation, which is currently listed as item 221 of the table, was declared not to be a prescribed private fund under subsection 995‑1(1) of the Act. This has been given effect by item [14] with The Orica Community Foundation having a period of effect finishing on 3 July 2007.

The prescribed private fund listed as item 317 of the table, with effect from 23 June 2005, formally changed its approved name from The Waterham Family Foundation to The Shine On Foundation which is currently listed as item 439. Both names are consolidated by item [18] and item 439 is omitted by item [19].

Item [20]

Item [20] adds the following 151 new prescribed private funds to reflect those which have been approved since the table was last amended on 16 November 2006.