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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Charitable Trusts Amendment Bill 2010 CONTENTS 1. Short title 2 2. Commencement 2 3. Act amended 2 4. Part VA inserted 2 Part VA -- Gifts by certain trusts for philanthropic purposes 22A. Terms used 2 22B. Prescribed trust -- trust instrument containing express power to give to eligible recipients 3 22C. Prescribed trust -- trust instrument not containing express power to give to eligible recipients 3 22D. Ancillary provisions 4 5. Schedule 1 inserted 6 Schedule 1 -- Declaration by trustees 149--1 page i Western Australia LEGISLATIVE ASSEMBLY Charitable Trusts Amendment Bill 2010 A Bill for An Act to amend the Charitable Trusts Act 1962. The Parliament of Western Australia enacts as follows: page 1 Charitable Trusts Amendment Bill 2010 s. 1 1 1. Short title 2 This is the Charitable Trusts Amendment Act 2010. 3 2. Commencement 4 This Act comes into operation on the day on which it receives 5 the Royal Assent. 6 3. Act amended 7 This Act amends the Charitable Trusts Act 1962. 8 4. Part VA inserted 9 After Part IV insert: 10 11 Part VA -- Gifts by certain trusts for 12 philanthropic purposes 13 22A. Terms used 14 In this Part -- 15 commencement day means the day on which the 16 Charitable Trusts Amendment Act 2010 comes into 17 operation; 18 eligible recipient means a deductible gift recipient 19 within the meaning of that term in the Income Tax 20 Assessment Act 1997 (Commonwealth), whether or not 21 the deductible gift recipient is a charity at law or 22 (without limitation) is established for a charitable 23 purpose or purposes; 24 prescribed trust means -- 25 (a) a fund referred to in item 2 of the Table in 26 section 30-15 of the Income Tax Assessment 27 Act 1997 (Commonwealth); or page 2 Charitable Trusts Amendment Bill 2010 s. 4 1 (b) a trust that is established and maintained for 2 charitable or philanthropic purposes and is of a 3 class prescribed by the regulations, 4 whether created before, on or after the commencement 5 day; 6 trust instrument means the will or instrument of trust 7 establishing a prescribed trust, as modified by all 8 validly executed amendments. 9 22B. Prescribed trust -- trust instrument containing 10 express power to give to eligible recipients 11 The trust instrument of a prescribed trust may include 12 an express power for the trustees to provide money, 13 property or benefits to or for an eligible recipient or for 14 the establishment of an eligible recipient. 15 22C. Prescribed trust -- trust instrument not containing 16 express power to give to eligible recipients 17 (1) The powers of the trustees of a prescribed trust, whose 18 trust instrument does not contain an express power to 19 do so, include a power to provide money, property or 20 benefits to or for an eligible recipient or for the 21 establishment of an eligible recipient. 22 (2) Subsection (1) -- 23 (a) applies despite any provision to the contrary in 24 the trust instrument; but 25 (b) does not apply in relation to a particular eligible 26 recipient or a particular class of eligible 27 recipients to the extent that there is an express 28 prohibition in the trust instrument against the 29 provision by the trustees of money, property or 30 benefits -- 31 (i) to or for that eligible recipient or class 32 of eligible recipients; or page 3 Charitable Trusts Amendment Bill 2010 s. 4 1 (ii) for the establishment of that eligible 2 recipient or class of eligible recipients. 3 (3) Subsection (1) does not apply to the trustees of a 4 prescribed trust unless there is in force a declaration, 5 substantially to the effect of the form in Schedule 1, for 6 the prescribed trust. 7 (4) For the purpose of making a declaration under this 8 section, the form in Schedule 1 may be modified so as 9 to limit the application of the declaration to a stated 10 eligible recipient or stated class of eligible recipients. 11 (5) If the declaration made for a prescribed trust is so 12 limited, subsection (1) in its application to the 13 prescribed trust has effect only in relation to the stated 14 eligible recipient or stated class of eligible recipients. 15 (6) The trustees must ensure that the declaration, or a 16 certified copy of it, is retained with the records of the 17 prescribed trust. 18 (7) The trustees are not under a duty to make a declaration 19 under this section, nor are the trustees in breach of a 20 duty in making a declaration under this section. 21 22D. Ancillary provisions 22 (1) In this section -- 23 prescribed power, in relation to a prescribed trust, 24 means -- 25 (a) a power referred to in section 22B included in 26 the trust instrument; or 27 (b) the power referred to in section 22C as 28 applying to the prescribed trust. 29 (2) This Act applies to a prescribed trust as if the 30 prescribed power were a power exercisable for a 31 charitable purpose. page 4 Charitable Trusts Amendment Bill 2010 s. 4 1 (3) Without limiting subsection (2) -- 2 (a) neither the existence nor the exercise of the 3 prescribed power affects the validity or status 4 of a charitable trust as a charitable trust; and 5 (b) a prescribed trust is to be construed and given 6 effect to as if -- 7 (i) the prescribed power were a power 8 exercisable for a charitable purpose; and 9 (ii) any payment or application of the trust 10 property or the trust income, or any part 11 of either of them, in the way allowed by 12 the power were to or for a charitable 13 purpose; 14 and 15 (c) the existence or exercise of the prescribed 16 power does not affect the control of a 17 prescribed trust by the Court in the exercise of 18 the Court's general jurisdiction in relation to 19 charitable trusts; and 20 (d) the jurisdiction mentioned in paragraph (c) 21 extends to the prescribed power as if the power 22 were exercisable for a charitable purpose. 23 (4) The provision, before the commencement day, by the 24 trustees of a prescribed trust of money, property or 25 benefits to or for an eligible recipient or for the 26 establishment of an eligible recipient -- 27 (a) is taken to be, and always to have been, a 28 provision for an authorised and valid purpose of 29 the prescribed trust; and 30 (b) does not affect, and is taken never to have 31 affected, the status of the prescribed trust as a 32 charitable trust. page 5 Charitable Trusts Amendment Bill 2010 s. 5 1 (5) Subsection (4) applies despite anything to the contrary 2 in the trust instrument. 3 (6) The inclusion of a power referred to in section 22B in 4 the trust instrument of a prescribed trust before the 5 commencement day is taken to be, and always to have 6 been, validly included. 7 8 5. Schedule 1 inserted 9 After section 22 insert: 10 11 Schedule 1 -- Declaration by trustees 12 [s. 22C] 13 The trustees of the [insert name of trust], after having regard 14 to the effect of this declaration (including its effect on the 15 liability of the trustees to income tax), declare that the 16 power conferred by the Charitable Trusts Act 1962 17 section 22C to provide money, property or benefits to or for 18 an eligible recipient, or for the establishment of an eligible 19 recipient, within the meaning of section 22A of that Act, is 20 approved as a power that the trustees for the time being of 21 the [insert name of trust] are authorised to exercise. 22 Deed dated 23 24
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