LSB December 2021 HR

More documents

Recommendations

Info

TAX FILES DGRs that are not already charities PAUL INGRAM, SENIOR LEGAL COUNSEL, MINTERELLISON Most of the general Deductible Gift Recipient (DGR) categories in Division 30 of the ITAA 1997 require the relevant fund, authority or institution to be: • a Registered Charity (ie. with the ACNC); • an ‘Australian Government Agency’; or • operated by a Registered Charity or Australian Government Agency before they can apply for endorsement as a DGR. But there were 11 general DGR categories that were not subject to this requirement, namely: • public funds for hospitals (item 1.1.3); • public funds for public ambulance services (item 1.1.8); • public funds for religious instruction in government schools (item 2.1.8); • Roman Catholic public funds for religious instruction in government schools (item 2.1.9); • school building funds (item 2.1.10); • public funds for rural school hostel buildings (item 2.1.11); • approved research institutes (item 3.1.1); • necessitous circumstances funds (item 4.1.3); • REO funds – ie. public funds on the Register of Environmental Organisations (item 6.1.1); • ROCO funds – ie. public funds on the Register of Cultural Organisations (item 12.1.1); and • fire and emergency services funds (item 12A.1.3). However, as a result of the Treasury Laws Amendment (2021 Measures No. 2) Act 2021 (Amending Act), which received Assent on 13 September 2021, these 11 categories will now also be subject to the same requirement. The change takes effect from 13 December 2021, being 3 months after the date of Assent, but is subject to some important transitional measures (explained below). AUTOMATIC 12-MONTH GENERAL TRANSITION PERIOD FOR EXISTING DGRS All existing non-government DGRs will have 12 months (ie. until 13 December 2022) to become a Registered Charity. 34 THE BULLETIN December 2021 This will give affected DGRs time to: • review their Constitutions, and their entitlement to charity status generally; • effect any required changes; and • apply to the ACNC for registration. Affected DGRs who do not comply with the new requirement will lose their DGR status as at 13 December 2022, unless they have obtained an ‘extended application date’ under the next transitional measure. DISCRETION TO GRANT A THREE-YEAR EXTENSION Affected DGRs can also apply to have an ‘extended application date’ (being 13 December 2025). Applications for this measure have to be made by 13 December 2022, and will be granted at the Commissioner’s discretion. Before that discretion can be exercised: • the Commissioner must be satisfied that the following ‘prescribed’ criteria are met: ◦ there has been no change in the applicant’s circumstances that would affect its entitlement to DGR endorsement (but for these amendments); ◦ the applicant has never had an application for registration under the ACNC legislation refused; and ◦ the applicant has never had its registration under the ACNC legislation involuntarily revoked; and • the Commissioner must also have regard to certain ‘prescribed matters’, namely: ◦ whether the applicant has taken steps to satisfy the requirements for registration as a charity, to apply for registration, and to provide all required information; ◦ whether it is reasonably possible that the applicant will be able to satisfy the requirements for charity registration by 13 December 2025; ◦ if the applicant believes that it is unlikely to satisfy the requirements for charity registration by 13 December 2025 – whether it is reasonable for the applicant to be given additional time to wind up and distribute surplus assets; and ◦ any views expressed by the ACNC Commissioner about the above matters. OUTSTANDING DGR APPLICATIONS AS AT 13 DECEMBER 2021 Where an organisation has made an application to the Commissioner for endorsement under one of the affected DGR categories prior to 13 December 2021, and the application has not been determined by that date, that organisation will qualify for both the 12 month general transition period and the three year extended transition period. However, it appears that REO and ROCO applications are a special case: • these applications involve a two-step procedure: ◦ approval by the relevant Minister; and ◦ endorsement by the Commissioner; • the ATO position appears to be that if the first of those steps (Ministerial approval) has not been satisfied by 13 December 2021, then the applicant will not be entitled to any transitional relief (and will presumably have to apply for Charity Registration before the REO/ ROCCO application will progress); • however, if the first step (Ministerial approval) has been satisfied by 13 December 2021, but the application for endorsement has not been determined by the Commissioner by that date, then both transitional measures will presumably apply. APPLICATIONS MADE AFTER 13 DECEMBER 2021 Organisations applying under one of the affected DGR categories after 13 December 2021 will need to comply with the new requirement before their application can proceed. Tax Files is contributed by members of the Taxation Committee of the Business Law Section of the Law Council of South Australia. B
BOOKSHELF G Appleby et al Federation Press 2021 HB $160.00 JUDICIAL FEDERALISM IN AUSTRALIA: HISTORY, THEORY, DOCTRINE AND PRACTICE Abstract from Federation Press The Australian High Court has implied from Chapter III of the Constitution significant protections for judicial independence and fair trial processes. In the last 25 years, these protections have been extended to the judiciaries of the Australian States with oftenoverlooked consequences for the operation of the Australian federation… To inform and illuminate these ongoing debates, Judicial Federalism in Australia: History, Theory, Doctrine and Practice provides a holistic analysis of the federal influence of Chapter III. It considers the historical underpinnings of the Chapter. LAW OF COSTS Abstract from LexisNexis Law of Costs 5th edition comprehensively addresses the legislation, court rules and case law pertaining to the law of costs in each Australian jurisdiction, as well as federally, in both the lawyer-client and party-party contexts. The authoritative nature of this work is evidenced by its previous editions being judicially cited on hundreds of occasions. It remains the only dedicated scholarly treatment of Australian costs law in book form. GE dal Pont 5 th ed LexisNexis 2021 PB $460.00 K Mason, JW Carter & GJ Tolhurst 4 th ed LexisNexis 2021 PB $259.00 RESTITUTION LAW IN AUSTRALIA Abstract from LexisNexis Restitution is one of the law’s few remaining commons, largely untouched by statute. Fifty years ago restitution was a wilderness, an apparent ‘miscellany of disparate categories’ through which litigant, judge and student trudged holding a compass marked ‘implied contract’ at its four points. The landscape of the modern Australian law of restitution, however, is complex. The topic of restitution addressed by the authors includes doctrines responding to different policies as well as gain-based remedies appurtenant to wrongs with their juridical source outside unjust enrichment, which is only one of the bases for restitution. The fourth edition has been fully revised and updated and some chapters rewritten. D Rolph et al 6 th ed LexisNexis 2021 PB $172.00 BALKIN & DAVIS: LAW OF TORTS Abstract from LexisNexis Balkin and Davis Law of Torts provides clear, comprehensive and authoritative discussion and critical analysis of common law and statutory torts across all Australian jurisdictions. The text covers the civil wrongs protecting intentional injury to person and property; the tort of negligence, with respect both to personal and property damage and for the recovery of purely economic loss; those torts, such as nuisance, in which neither intention nor negligence is necessarily relevant; defamation; and the economic torts which protect the intentional infringement of another’s trade or business. The sixth edition has been extensively updated to cover new developments in case law and legislation, including: significant changes in vicarious liability, particularly institutional abuse and labour hire arrangements. December 2021 THE BULLETIN 35
Page 1 and 2: THE BULLETIN THE LAW SOCIETY OF SA
Page 3 and 4: This issue of The Law Society of So
Page 5 and 6: PRESIDENT’S MESSAGE I look forwar
Page 8 and 9: ANIMAL LAW Animals and intervention
Page 10 and 11: RENTING WITH PETS IN THE DOG HOUSE?
Page 12 and 13: Q&A Know Your Council Member: Melan
Page 14 and 15: IN HONOUR Vale: Mark Glencraig Nich
Page 16 and 17: DISABILITY JUSTICE More collaborati
Page 18 and 19: FEATURE THE NEED TO THINK OUTSIDE C
Page 20 and 21: FEATURE Western Law as having judge
Page 22 and 23: ANIMAL LAW Therapy or assistance an
Page 24 and 25: YOUNG LAWYERS facebook.com/YLCSA Yo
Page 26 and 27: WELLBEING & RESILIENCE It's OK to g
Page 28 and 29: RISK WATCH Culturally and linguisti
Page 30 and 31: FEATURE The existing legal safeguar
Page 32 and 33: FEATURE Turkeys and the law DIANA T
Page 36 and 37: FAMILY LAW CASE NOTES Family Law Ca
Page 38 and 39: GAZING IN THE GAZETTE REGULATIONS P
Page 40: We manage one of SA’s largest soc

LSB December 2021 HR

Create successful ePaper yourself

Delete template?

Save as template?