Changes for Public Ancillary Funds

August 2011  

 

Introduction

 

Since 2009 the Federal Government has given considerable attention to the basis of operating an ancillary fund.

 

An ancillary fund is a type of fund that is entitled to deductible gift recipient (DGR) endorsement and donations to which are tax deductable.

 

They might be described as a tax deductable fund raising mechanism to distribute to other DGRs.

 

There are 2 categories:

 

• Private Ancillary Funds (previously called Prescribed Private Funds); and
• Public Ancillary Funds (sometimes previously referred to simply as “Ancillary Funds”). 

A Public Ancillary Fund is distinct from a Private Ancillary Fund in that it must invite the public to contribute to the fund.

 

A Private Ancillary Fund allows businesses, families and individuals to establish and donate to charitable trust of their own, without the need to seek contributions from the public, for the purposes of disbursing funds to other DGRs.

 

Commencing 1 October 2009 a new regime for the oversight of Private Ancillary Funds came into place.

 

In relation to the Public Ancillary Funds the Assistant Treasurer has now released an exposure draft of amendments to tax legislation principally to:

 

• adopt the name Public Ancillary Fund;
• give the Treasurer the power to make legislative guidelines about the establishment and maintenance of a Public Ancillary Fund; and
• give the Commissioner of Taxation the power to impose administrative penalties on trustees that fail to comply with the guidelines and to remove or suspend trustees of non-complying funds.

 

Observations

 

The changes will greatly impact the operation of Public Ancillary Funds.

 

Only properly resourced and administered funds will thrive under the new regime.

 

A Public Ancillary Fund cannot carry on other activities.

 

If you operate such a fund you will need to check your position as the “ball-game” is now different and penalties for non-compliance far more serious.

 

The new guidelines are enforced through a tailored system of administrative penalties.  These apply to trustees but can apply to individual directors where the penalty cannot be recovered from the trustee company.

 

The Commissioner of Taxation will have the power to suspend or remove the Corporate Trustees of Public Ancillary Funds that consistently breach the guidelines or other relevant Australian laws.

 

Apart from the Public Trustee of a State all the trustees of Public Ancillary Funds must be Corporate after 1 January 2012.  There is no intention to force individual trustees of existing funds to introduce a corporate trustee.

 

New penalties are introduced

 

The Corporations Act 2001 cannot apply to provide relief to a director from the administrative penalties.

 

Examples of penalties include:

 

• $550 for failure to notify the ATO within 21 days of any change to the Funds Governing Rules;

 

• Failure to keep proper accounts or make accounts available to the ATO – $1,100;

 

• Failure to comply with minimum annual distribution – $3,300;

 

• Breach of any investment guidelines – $3,300.

 

Minimum Distribution

 

The changes introduce welcome certainty by clearly providing what must be distributed each year and what may be retained for accumulation.

 

Urgent review

 

We suggest, if you currently operate this kind of fund, that you review both your documentation and operations as a matter of urgency as the new regime will generally apply from 1 January 2012.

 

Please contact our Client Services Manager if you require any assistance.