Taxation Theory, Practice, And Law: Study And Prevention Of Psychological Diseases Foundation V Commissioner Of Taxation [2015] FCA 1117

Section Breached and Reasons for Such Infringement

Discuss about the Taxation Theory practice and Law.

The Australian case Study and Prevention of Psychological Diseases Foundation v Commissioner of Taxation [2015] FCA 1117 is categorised under the division of taxation appeals. This division originated in the year 1986 by the legislature as an impartial and independent body for resolving disputes regarding licensing and tax. This is governed by the Tax Appeals Tribunal comprising three commissioners           duly appointed and confirmed by the Governor and the State Senate (New York State Tax Appeals and Tax Appeals Tribunal, 2013). The study and Prevention of Psychological Diseases Foundation (SPED) was built in 2005 and since its incorporation, the charitable foundation SPED received endorsements such as exemption from income tax under section 30-125 and was also offered with a deductible gift recipient (DGR). SPED further obtained other endorsements during its incorporation under section 176-1(1) as a charitable institution and under section 123D (2) as a charity for health promotion (AustLII, 2013).

With reference to the above concept, McGregor-Lowndes (2009) opined that most of the non-profit institutions are allowed several concessions and exemptions from fees, taxes and other charges. However, facts the state that a charitable foundation bears non-charitable purposes both ancillary or incidentally to fulfil its core purpose on the organisation and does not overthrow the gifts to the charitable institutions [Stratton v Simpson [1970] HCA 45; (1970) 125 CLR 138] (McGregor-Lowndes, 2009). This case scenario can be considered a strict warning for the charitable institutions who disregards the implementation of the process of scrutiny prior to initial endorsements (Commonwealth of Australia, 2015). The case was concerned with the endorsements of SPED, which is recognized as a charitable foundation to support the prevention programs for several Psychological Diseases exclusively through their research work (Commonwealth of Australia, 2015). In 2009, a review was conducted for the endorsements of SPED and by 2011’s 6^th April, it was discovered that SPED had failed to meet the requirements regarding the endorsements which granted during its incorporation. Based on this review, SPED had further applied for a review against the decision made by the Commissioner on 27^th of April, 2012. Through this case, in the initial stages, both the Tribunal and the Federal Court stated that regardless of the core objectives, the actual activities were obligatory to be fulfilled and not only the member of SPED, but also the general public must be benefitted (Corney & Lind Lawyers Pty Ltd, 2017).

Critical Discussion and Analysis of Tribunal Decisions

The legal system in Australia is completely relies on the wide systems, which are governed by rights and laws wherein, breach of any standard practice may lead to the cause of severe disciplinary actions (Mental Health Co-ordinating Council Inc, 2015). SPED received few endorsements at the time of its incorporation, out of which A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) under section 176-1(1) and Fringe Benefits Tax Assessment Act 1986 (Cth) (FBTAA) under section 123D(2) were breached (AustLII, n.d.).

Under section 176-1(1), the division deals with the endorsements regarding charitable foundations. This section entails that the Commissioner can consider an entity as a charitable foundation only when it is has the authorization for the same. The consideration can be determined on the grounds of whether the entity had registered for the under the Taxation Administration Act 1953 correspondingly with Division 426 within Schedule 1. Secondly, this Act also highlights the condition that only if the entity is a charitable institution and possesses ABN, it can obtain the permission to be recognised as a charitable institution in true sense (Lakshmikumaran & Sridharan, 2008). On the other hand, Fringe Benefits Tax Assessment Act 1986 (Cth) (FBTAA) under section 123D(2) states that an entity would be authorized as a charitable institution for health promotion only if it bears ABN, is registered to provide charity for health promotion and is by no means an individual (AustLII, n.d.).

On this note, it can be ascertained from the review report that being termed as charitable institution, SPED had beached the terms and condition of both the Acts. It was identified through the review as a health promotion charitable institution that their principle motive or activity was not to endorse control or prevention of diseases. However, the sole benefit of the members working within the entity was to earn profits, which lead to the breach of the foremost principle stated in the endorsement. Moreover, it was also doubted that the members of SPED either had blood relation or were partners since its incorporation (Corney & Lind Lawyers Pty Ltd, 2017). Under SPED’s Constitution, the clause 10 & 11 states that the admission of member would be unlimited and a person may willingly apply for becoming a part of SPED by signing form, duly accepted by the Broad, but this was against considered untrue. Furthermore, the breach of being a charitable foundation for health promotion was prominent in the eye of the Tribunal and Federal Court wherein, availing personal benefits for the sake of the foundation was at peak. SPED claimed that its expenditures were purely on its research but overwhelmingly, the members were largely benefited such as with living expenses and all other personal expenditures and even on few investments (The Tax Institute, 2017; AustLII, 2013).

The core objectives for a charitable foundation is supposed to provide public health benefits either intangibly or tangibly [Downing v Federal Commissioner of Taxation [1971] HCA 38; (1971) 125 CLR 185] (AustLII, 2013). SPED particularly aimed to protect the objectives of the chartable institution by funding and operating research team and stated that its study would consider human behaviour in terms of their physical, social and emotional conditions and environment. Moreover, the property and income would be applicable for promoting its institution’s objectives conducted by the members. However, no such evidence was found to such claims made by SPED (Corney & Lind Lawyers Pty Ltd, 2017; Television Education Network Pty Ltd, 2014).

In case of Study and Prevention of Psychological Diseases Foundation v Commissioner of Taxation, the federal court sustained a decision of the Administrative Appeals Tribunal that the Study and Prevention of Psychological Diseases Foundation (SPED) did not follow the norms of charitable institutions or health promotion charitable organizations. Due to this reason, the Federal court passed on the case to the Tribunal for considering the question that rose regarding the cancelation date of SPED’s endorsements as a charitable health promotion organization. Initially, the commissioner had certified SPED as the entity that was free from income tax (The Tax Institute, 2017). In July, 2005, SPED was considered the ‘charitable institution’ under section 176-1(1) of A New Tax System (Goods and Services Tax) Act 1999 (GST Act) and the ‘deductable gift recipients’ under section 50-110 of the Income Tax Assessment Act 1997 (ITAA 1997). Moreover, SPED was being referred as the ‘health promotion charity’ under section 123D(2) of the Fringe Benefit Tax Assessment Act 1986 (FBTAA) (AustLII, 2013a; AustLII, 2013b). A review of SPED’s endorsements were declared free from income tax due to charity as per the Subdiv 50-B of the ITAA 1997 was taken into action from 2009’s August. After few years, in 2011 April Commissioner of Taxation advised SPED that since the organization could not adhere to all the norms of the stated endorsements. Due to this reason, the Commissioner cancelled the previous endorsement in accordance with section 426-55 of the Taxation Administration Act 1953, which was applied for SPED from 2009 (AustLII, 2013a).

In context to the objection of Taxation Commissioner, certain issues required evaluation such as SPED’s presence as a charitable institution, health promotion charity and the date when the revocation had become effective in case the objection was proved. In accordance of situation analysis, the study must concentrate on factual background of SPED. From the recorded data of AustLII (2013a), it can be affirmed that the initiation of SPED was full of controversies regarding the collection of funds from the mid 1980’s to 2000. Hence, the members of SPED made television appearances, launched books, represented national as well as international conferences for its ‘research team’, which came to be known as the Ideal Human Environment Social Research Team (IHESRT). In addition, between these years, IHESRT undertook several projects for funding and then proposed the Ideal Human Environment (IHE). In the year 2000, IHE Foundation was established and provided relief programs to the young people, who suffered from social disorders. Later, in 2005 SPED was implemented within IHE that conducted programs for the promotion of prevention for psychological diseases. Its constitution was entirely objected towards public benefit and charitable purposes on’24 x 7’basis (AustLII, 2013a).

According to the clause 3.1 of SPED, “any income the member derives is classified as fund-raising for SPED” and any kind of expenses that could be derived from “the efforts of the members”. On the other hand, from the recorded financial deals of SPED, it concluded that there was a project named “Project Vanuatu” which did not proceed but advanced with $1,100,000 and was sold in the year 2008. However, the deal was not settled until four years from the initiation of the deal. Moreover, there were several handsome amounts of income sources including “Donations”, “Dividends from Shares”, “Gain on Options Trading” and “Trust Distributions”. The pattern of transactions throughout the year raised questions regarding SPED’s legal funding. The term “charitable” has a scientific and legal meaning, which clearly depicts that a charitable institution need to be linked with charitable purposes [Federal Commissioner of Taxation v Word Investments Ltd [2008] HCA 55; (2008) 236 CLR 204 at 262] (AustLII, 2013a; High Court of Australia, 2008a).

In addition, this type of foundation aimed at providing public benefits rather than on personal grounds. The benefits can be tangible or intangible but the beneficial aspects must be available to the public [Downing v Federal Commissioner of Taxation [1971] HCA 38; (1971) 125 CLR 185] (Bryan et.al., 2016; High Court of Australia, 2008c). The foundation should maintain its charitable purposes to adhere to the technical and legal meaning of “charitable” [Federal Commissioner of Taxation v Word Investments Limited [2008] HCA 55; (2008) 236 CLR 204 at 216–217] (AustLII, 2013a; High Court of Australia, 2008b). If an organization’s constituent documents states that its purposes are entirely charitable, but reality turn out to be completely opposite then the organization may be considered working against the legal norms. SPED’s actual work procedures were not aligned with its constituent documents and did not fulfil the charitable purposes as well. The commissioner also found disputes in SPED as an “institution”, because “an entity is not an institution, as that term is used in the description “charitable institution”, merely through incorporation” [Stratton v Simpson [1970] HCA 45; (1970) 125 CLR 138, at 158] (AustLII, 2013a).

In the context of the above discussed scenario, it is quite obvious that SPED cannot avail the benefits of any endorsements that were granted previously. The revocation should start from the day specified by Commissioner according to s 426-55(2) of the Taxation Administration Act 1953. With relation to revocation, SPED launched complaints on the grounds of revocation date that was prepared by considering a back-date of 1^st January 2005. However, this complain did not change the decisions of the Tribunal, but the revocation of the endorsement might begin from the date that Tribunal decides or the date as decided by the Commissioner. In order to confirm these facts regarding revocation, Business Activity Statement Audit (BAS) was conducted in the year 2007, wherein SPED’s actual activities and financial affairs were not analyzed adequately. Besides, the organization was not even appropriately informed about the requisites of the audit program. Due to this reason, the decision of Commissioner regarding the endorsement revocation became effective from 1^st January 2005. In accordance to this date, Tribunal mentioned that two endorsements had not come into effect until July 2005, but there were possibilities that these endorsements might become effective from earlier dates. Although the issue was not raised by any parties of this case the Tribunal accomplished the certainty provision and affirmed the objection decision (AustLII, 2013a).

Conclusion

Based on the above legal aspects, it can be asserted that SPED had definitely chosen a wrong direction towards the legislative facets. The “institution” and “charitable” organisations have certain legal norms of endorsements, which SPED could not adhere adequately and hence was considered liable to revocation by the Taxation Commission.

References

AustLII, No Date, Commonwealth Consolidated Acts, Index, viewed 31 January 2017, <https://www.austlii.edu.au/au/legis/cth/consol_act/fbtaa1986312/s123d.html>.

AustLII, 2013, Administrative Appeals Tribunal of Australia, Cases, viewed 31 January 2017, <https://www.austlii.edu.au/au/cases/cth/AATA/2013/919.html>.

AustLII, 2013a. The Study and Prevention of Psychological Diseases Foundation Incorporated and Commissioner of Taxation [2013] AATA 919 (20 December 2013), Administrative Appeals Tribunal of Australia, viewed 31 January 2017, <https://www.austlii.edu.au/au/cases/cth/aat/2013/919.html>.

AustLII, 2013b, Study and Prevention of Psychological Diseases Foundation v Commissioner of Taxation [2015] FCA 1117 (21 October 2015), Federal Court of Australia, viewed 31 January 2017, <https://www.austlii.edu.au/au/cases/cth/FCA/2015/1117.html>.

Bryan, M., Degeling, S., Donald, S. &, Vann, V., 2016, A Sourcebook on Equity and Trusts in Australia, Australia Cambridge University Press.

Commonwealth of Australia, 2015. Non-Profit News Service – Federal Court decision on SPED Appeal. Not-for-Profit, viewed 31 January 2017, <https://www.ato.gov.au/non-profit/non-profit-news-service/in-detail/articles/non-profit-news-service—federal-court-decision-on-sped-appeal/>.

Corney & Lind Lawyers Pty Ltd, 2017, Retrospective revocation of charitable status and tax benefit entitlements. What it means to have “charitable objectives.”, Resources & Events, viewed 31 January 2017, <https://www.corneyandlind.com.au/resource-centre/not-for-profit/case-note-the-study-and-prevention-of-psychological-diseases-foundation-sped-v-commissioner-of-taxation-2015-fca-1117/>.

High Court of Australia, 2008a, Commissioner of Taxation of the Commonwealth of Australia v Word Investments Limited [2008] HCA 55,  High Court of Australia. viewed 31 January 2017, <https://eresources.hcourt.gov.au/showCase/2008/HCA/55>.

High Court of Australia, 2008b, ‘Commissioner of Taxation of The Commonwealth of Australia v Word Investments Limited’, High Court of Australia, p. 1.

High Court of Australia, 2008c, Downing v Commissioner Of Taxation (Cth) [1971] HCA 38, High Court of Australia, viewed 31 January 2017, <https://eresources.hcourt.gov.au/showbyHandle/1/231341>.

Lakshmikumaran & Sridharan, 2008, ‘A New Tax System (Goods and Services Tax) Act 1999’, Data, pp. 1-586.

McGregor-Lowndes, M., 2009, ‘Measuring Comparative Worthiness of Charities– An Australian Perspective’, Documents, pp. 1-23.

Mental Health Co-ordinating Council Inc, 2015, Available at: Chapter 2 Section A: The Legal Framework, MHCC Mental Health Rights Manual. viewed 31 January 2017, <https://mhrm.mhcc.org.au/chapter-2/2a.aspx>.

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Television Education Network Pty Ltd, 2014, AAT Agrees With Commissioner’s Backdated Revocation Of Charitable Endorsement For “Family” Charity. The Study and Prevention of Psychological Diseases Foundation Incorporated & Commissioner of Taxation [2013] AATA 919 (20 December 2013), viewed 31 January 2017, <https://www.tved.net.au/dsp_news_printView.cfm?News_ID=2044>.

The Tax Institute, 2017, Psychological diseases foundation not “charitable institution” – Study and Prevention of Psychological Diseases Foundation. The Tax Institute. viewed 31 January 2017, <https://www.taxinstitute.com.au/news/psychological-diseases-foundation-not-charitable-institution-study-and-prevention-of-psychological-diseases-foundation>.