FIERCE EXTREMES: WILL TAX ENDORSEMENT STYMIE MORE NUANCED ENFORCEMENT BY THE AUSTRALIAN CHARITIES AND NOT-FOR-PROFITS COMMISSION?
By Ian Murray
The Australian Charities and Not-for-profits Commission Act 2012 (Cth) commenced on 3 December 2012, delivering Australia a federal regulator for not-for-profits, the Australian Charities and Not-for-profits Commission (‘ACNC’). The ACNC is expected to effect a ‘fundamental change’ from the current system where the Australian Taxation Office, as the ‘default Commonwealth regulator’, has been ‘unable to take action commensurate to the circumstances being addressed’. However, the ACNC’s achievement of its regulatory goals, especially by means of proportional enforcement action, may be stunted by regulatory overlap with the Commissioner of Taxation. This overlap is primarily engendered by additional tax endorsement requirements for charities to access tax concessions, such as income tax exemption. In particular, the extension of endorsement special conditions under the Tax Laws Amendment (2013 Measures No 2) Act 2013 (Cth) raises the possibility that charities may face ‘fierce extremes’ between milder, more nuanced, ACNC compliance action and revocation of income tax endorsement by the Commissioner of Taxation.