Issued by authority of the Assistant Treasurer

Income Tax Assessment Act 1997

Income Tax Assessment Amendment Regulations 2009 (No. 4)

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 prescribe 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 under regulation 995-1.02 of the Income Tax Assessment Regulations 1997 (the Principal Regulations) on and from the date specified in that table.

The purpose of the Regulations is to update the table under regulation 995‑1.02 to take account of changes approved by the Government since the table was last updated in January 2009.

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 deductible gift recipients in Subdivision 30-B of the Act.

Section 30-15 of the Act provides for the tax deductibility of gifts or contributions to prescribed private funds.

The Australian Taxation Office assesses funds that wish to be prescribed as ‘prescribed private funds’ against certain guidelines and then makes recommendations to the Assistant Treasurer.

The Regulations prescribe 46 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 amend the table under regulation 995‑1.02 to reflect a declaration of the Assistant Treasurer that ended the period of eligibility for eight prescribed private funds to receive tax deductible gifts. These funds remain in the Principal Regulations to reflect the period that they were eligible to receive tax deductible gifts.

In addition, the Regulations amend the table under regulation 995‑1.02 to reflect the change of name of five organisations currently listed under the regulations, and to alter the start date of one organisation.

The Regulations commence on the day after registration on the Federal Register of Legislative Instruments. However, they provide for different dates of effect for the funds, namely the dates of approval by the Government.

While these dates applicable to the changes are earlier than the date of registration of the Regulations, subsection 12(2) of the Legislative Instruments Act 2003 does not have any application. 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 retrospective amendment to the table under regulation 995‑1.02, reflecting the end of the period of eligibility for eight prescribed private funds to receive tax deductible gifts, does not adversely affect the rights of, or impose liabilities upon a person. Subsection 995-1(1) of the Act ends the eligibility of an organisation to receive tax deductible gifts from the date of the Assistant Treasurer’s signature. The update of the Principal Regulations merely reflects what has already occurred.

The Regulations are administrative in nature, rather than regulatory. They are a machinery of government and do not substantially alter existing arrangements. Accordingly, a Regulation Impact Statement is not mandatory and was not prepared.

Consultation was not required as the Regulations are a machinery of government and do not substantially alter existing arrangements.

ATTACHMENT

Details of the Income Tax Assessment Amendment Regulations 2009 (No. 4)

Regulation 1: Names the regulations as the Income Tax Assessment Amendment Regulations 2009 (No. 4).

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

Item 1 updates the table under regulation 995-1.02 of the Principal Regulations.

Changes which have been approved by the Assistant Treasurer and the former Assistant Treasurer to regulation 995-1.02 are listed below.

The former Assistant Treasurer agreed to amend the Principal Regulations to change the name of four funds currently listed. The current Assistant Treasurer also has agreed to change the name of one fund. This gives effect to the changes in the below table.

The former Assistant Treasurer declared seven funds not to be prescribed private funds under subsection 995‑1(1) of the Act. The current Assistant Treasurer has declared one fund not to be prescribed private funds under subsection 995-1(1) of the Act. This is reflected in the Regulations by these eight items having the period of effect finishing on their respective declaration dates, as detailed in the below table.

The Assistant Treasurer agreed to amend the Principal Regulations to alter the start date for one organisation. This gives effect to the changes in the below table.

The following list reflects those prescribed private funds which have been approved since the table was last amended.