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TR 2011/D2
TR 2004/8
Subject References:
Income Tax
GST and FBT concessions
Deductible gift recipient
Charitable institution
Health promotion charity
Précis
Outlines the ATO's response to the Tribunal's decision about entitlement to endorsement as a charitable institution and as a health promotion charity.
Brief Summary of Facts
The applicant was an incorporated association. The purposes stated in its original Constitution were to promote the bicycle as a vehicle, to promote all forms of cycling, to facilitate research and technical information about bicycles and bicycling; to develop policies and ensure input of cyclists into government policies, to increase the skills of cyclists and to educate others about the needs of cyclists; to encourage effective planning, design and development of cycling opportunities and facilities in Victoria.
Its activities included behavioural change programs; recreational rides; lobbying government for better facilities for cyclists and providing bicycle- related products and services.
In 2009 the Statement of Purposes was amended to read: " The purpose of the association is to promote the health of the community through the prevention and control of disease by " More People Cycling More Often ."
The applicant established a Medical and Public Health Reference Panel and its "Health promotion and disease prevention strategy" stated that it would work to diminish the risks of a sedentary lifestyle by getting more people riding bikes more often. It proposed to bring about change by facilitating and supporting those who wished to ride, encouraging and challenging institutions and individuals to consider that riding a bicycle would help them achieve their goals, to bring influence to bear on government and to act as a catalyst for the growth of public opinion favouring changes to support bicycle riding.
The applicant used the surplus of revenue over expenditure mainly for facilities and behaviour change activities.
The applicant applied to be endorsed as a "charitable institution" under s 50-105 of the Income Tax Assessment Act 1997 (the "ITAA97"), and s 176-1 of the A New Tax System (Goods and Services Tax) Act 1999 (the "GST Act"), and also applied to be endorsed as a "charitable institution whose principal activity is to promote the prevention or the control of diseases in human beings" (a "Health Promotion Charity") under s 30-120(a) of the ITAA97, or s 123D(1) of the Fringe Benefits Tax Assessment Act 1986 (the "FBTAA").
During the hearing the applicant sought to refer to material relating to another entity endorsed as a charitable institution.
Issues decided by the Tribunal
The Tribunal held that the applicant was a charitable institution, as its primary purpose was to benefit the general community by promoting cycling in all its forms for the overall purpose of promoting fitness which is a charitable purpose.
The Tribunal also held that the applicant's principal activity was not to promote the prevention or control of diseases in human beings, as its purpose is to promote physical fitness. Accordingly, it was not entitled to be endorsed as a deductible gift recipient or as a health promotion charity under s123D of the FBTAA.
Material in relation to other entities was not relevant in determining whether an entity is entitled to endorsement.
Tax Office view of Decision
The decision that the applicant's primary activity was not to promote the prevention or the control of diseases in human beings confirms the Commissioner's view.
The finding of the Tribunal that the applicant had a purpose of promoting cycling in all its forms and an overall purpose of promoting fitness, which is a charitable purpose, was open to the Tribunal on the facts.
The ATO will apply the decision to institutions that promote an activity that is sporting or recreational in nature, if the facts indicate that the activity is a means by which a broader charitable purpose is achieved.
Administrative Treatment
Implications for ATO precedential documents (Public Rulings & Determinations etc))
Draft Taxation Ruling TR 2011/D2 will be updated to refer to this decision before it is published as a final ruling.
Implications for Law Administration Practice Statements
None identified
Your comments
We invite you to advise us if you feel this decision has consequences we have not identified, or if a precedential decision such as a Public Ruling or an ATO ID requires reconsideration or amendment. Please forward your comments to the contact officer by the due date.
| Date Issued: |
12 August 2011 |
| Due Date: |
7 October 201 |
| Contact officer: |
Ilana Millar |
| Email address: |
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
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| Telephone: |
03 9285 1179 |
| Facsimile: |
03 9285 1943 |
| Address: |
2 Lonsdale Street Melbourne Vic 3000
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After that date any comments on the consequences of this case for any ATO publication should be sent to the following mail box:
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Legislative References:
Income Tax Assessment Act 1997
30-15
SDiv 30-B
30-120
30-120(a)
30-125
50-5
50-105
50-110
Fringe Benefits Tax Assessment Act 1986
5B(IE)
123D
136(1)
A New Tax System (Goods and Services Tax) Act 1999
176-1
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