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Guides & Guidelines as made
Principal Instruments; These Guidelines may be cited as the Cultural Bequests Program Guidelines (No. 1) 1997.
Administered by: Treasury
Registered 01 Jan 2005
Tabling HistoryDate
Tabled Senate02-Mar-1998
Gazetted 07 Jan 1998
Date of repeal 21 Mar 2012
Repealed by Other
Repealing Comments Enabling provision repealed by Schedule 6, Part 2, Division 1, item 17 of the Tax Laws Amendment (2011 Measures No. 9) Act 2012.

Commonwealth of Australia

Income Tax Assessment Act 1997

Cultural Bequests Program Guidelines
(No. 1) 1997

I, Richard Kenneth Robert Alston, Minister for Communications, the Information Economy and the Arts, make the following instrument under section 30-235 of the Income Tax Assessment Act 1997.

Dated         8 December                 1997.

 

 

 

 

 

Minister for Communications, the Information Economy and the Arts

____________

PART 1¾PRELIMINARY

Citation

         1.   These Guidelines may be cited as the Cultural Bequests Program Guidelines (No. 1) 1997.

[NOTE: This instrument commences on gazettal: see Acts Interpretation Act 1901, ss. 46A and 48.]  [See Gazette GN 1, 7 January 1998.]

Revocation of Guidelines

         2.   The Cultural Bequests Program Guidelines (No. 1) dated 29 January 1996 are repealed.

Interpretation

         3  In these Guidelines, unless the contrary intention appears:

“Act” means the Income Tax Assessment Act 1997;

“applicant” means a taxpayer who makes an application;

“application” means an application for a certificate under subsection 30-235(1) of the Act;

“Committee” means the Committee on Taxation Incentives for the Arts that is appointed by the Minister;

“gift” means a testamentary gift for the purposes of section 30-230 of the Act;

“maximum approval amount” means the maximum approval amount determined by the Minister under section 30-240 of the Act;

“Minister” means the Minister for Communications, the Information Economy and the Arts;

“recipient”, in relation to a gift, means a fund, authority or institution that is:

         (a)     mentioned in subsection 30-230(2) of the Act; and

         (b)     intended by the applicant to receive the gift;

“stock in trade” :

         (a)     in relation to an applicant who is a professional artist or producer of items of the same kind as the gift¾means items created or produced by the applicant for sale; and

         (b)     in relation to an applicant who is a professional dealer in items of the same kind as the gift¾means items acquired by the applicant for sale;

“valuer” means a person approved under section 30-210 of the Act.   

PART 2¾APPLICATIONS

Applications

         4.       (1)    An application for a certificate in respect of a financial year must be made before the end of that financial year.

 

         (2)     An application for a certificate in respect of the financial years 1995-96 and 1996-97 must be made on or before 31 December 1997.

 

         (3)     An application must:

         (a)     be made by the donor of the gift; and

         (b)     include a description and a photographic or other visual representation of the gift that is sufficient to permit a proper consideration of the application; and

         (c)     state the name and address of the recipient; and

         (d)     be signed and dated by the donor; and

         (e)     be accompanied by the undertakings mentioned in clause 5; and

         (f)      be accompanied by the valuations undertaken in accordance with clause 6.

Undertakings to accompany applications

         5.       (1)    For the purposes of paragraph 4(3)(e), the applicant must undertake in writing that, if the gift is approved, the applicant will enter into an agreement with the recipient and the Commonwealth that includes:

         (a)     a warranty by the applicant that:

                   (i)     he or she holds an unencumbered title to the gift; and

                   (ii)    the gift is a part of his or her personal collection and not stock in                                     trade; and

         (b)     an undertaking by the applicant to make the gift to the recipient and to                            do anything that may be necessary to ensure that the gift is made; and

         (c)     an undertaking by the applicant:

                   (i)     not to encumber, or dispose of, the gift before it is made to the                                recipient; and

                   (ii)    to maintain the gift until it is made; and

                   (iii)   not to do or omit to do anything in relation to the gift to diminish                                      its value; and

                   (iv)   to keep the recipient informed of the name and address of each                               person who is appointed as an executor under the will, or the                                       codicil of a will, in which the gift is bequeathed to the recipient. 

 

         (2)     For the purposes of paragraph 4(3)(e), the recipient must undertake in writing that, if the gift is approved, the recipient will:

         (a)     provide a detailed condition report of the gift to the Commonwealth                       and the Donor, as soon as possible after approval; and

         (b)     accept the gift as a part of its permanent collection, unless:

                   (i)     after a certificate is issued in relation to the gift under subsection                                     30-235(4) of the Act, the gift is damaged or has deteriorated to                                 the extent that the recipient refuses to accept the gift; and

                   (ii)    the Minister agrees with the decision of the recipient to refuse to                                      accept the gift; and

         (c)     keep the gift in accordance with the collection management policy of                     the recipient; and

         (d)     provide public access to the gift in accordance with the public access                              policy of the recipient.

 

         (3)     For the purposes of subclause (2), if a recipient is not a corporation or a statutory authority, the undertaking must be given:

         (a)     in the case of a recipient that is a fund which is the object of a                                 trust¾by the trustee, or trustees, of the fund; and

         (b)     in any other case¾by a person having authority to enter arrangements                            on behalf of the recipient that have a binding effect on the                                             management and operation of the recipient.

 

         (4)       The undertakings mentioned in this clause may be given using the form set out in the Schedule.

[NOTE:  See Part 6 for provisions for review of a decision of the Minister whether to give the agreement mentioned in subparagraph 5 (2) (b) (ii).]”.

Value of gifts

         6.       (1)    For the purposes of paragraph 4(3)(f), the applicant must obtain at least 2 written valuations of the market value of a gift as at the time when the application in relation to the gift was made, each valuation having been:

         (a)     undertaken by a different valuer who, when the gift was valued:

                   (i)     was approved in relation to property of the same kind as the gift;                                      and

                   (ii)    was not an officer or employee of the recipient of the gift; and

         (b)     completed not more than 90 days before the day on which the                                  application is made.

 

         (2)     If the Minister is not satisifed that a valuation accompanying an application is reasonable, the Minister may require the applicant:

         (a)     to obtain an additional valuation, or valuations, of the market value of                            the gift in accordance with subclause (1); and

         (b)     to give the additional valuation, or valuations, to the Minister.

 

         (3)     In considering an application, the Minister must take into account the average of the amounts of each valuation of the gift that the Minister is satisfied is reasonable.

 

PART 3¾CRITERIA

Policies of recipients

         7.       In considering an application, the Minister must take into account:

         (a)     whether the collection management and public access policies of the                     recipient provide for the proper housing, conservation, maintenance                             and accessibility of the gift; and

         (b)     whether, if the gift is made to the recipient, it will be kept and made                        available to the public in accordance with the collection management                       and public access policies of the recipient.  

 

Cultural significance

         8.       In considering an application, the Minister must take into account the cultural significance of the gift to which the application relates and, in particular, any of the following criteria:

         (a)     the contribution that the gift has made, or may make, to:

                   (i)     the development and recognition of Australian culture; and

                   (ii)    an understanding of the culture, science or history of Australia;

         (b)     the degree of creative or technical achievement that the gift                                               demonstrates;

         (c)     whether the gift is associated with a notable Australian person,                                Australian business or enterprise or an event or period in Australian                       history;

         (d)     whether items of the same kind as the gift are represented to a                                  significant degree in Australian public collections;

         (e)     whether the gift would contribute significantly to the existing                                  permanent collection of the recipient because of its relevance to items                             of the same, or of a similar, kind as the gift in that collection.

 

Other factors

         9.       In considering an application, the Minister must take into account the following other factors:

         (a)     the kinds of gifts that have already been made under the Cultural                                      Bequests Program and the cultural significance of those gifts, with a                     view to providing for a range of different kinds of gifts under the                            Program;

         (b)     the kinds of recipients of gifts that have already been made under the                              Cultural Bequests Program and the location of the recipients, with a                             view to promoting the distribution of gifts under the Program to a                             wide range of recipients in a wide range of locations across Australia;

         (c)     the value of the gift to which the application relates with a view to                          ensuring that:

                   (i)     gifts having a range of values are approved under the Cultural                                 Bequests Program; and

                   (ii)    as many gifts as possible are approved under the Program in a                                  financial year without the total value of all gifts in that year                                   exceeding the maximum approval amount for the year.

PART 4¾RECOMMENDATIONS OF THE COMMITTEE

Reference of applications to Committee

         10.     (1)    The Minister may refer an application to the Committee.

 

         (2)     The Committee must:

         (a)     consider an application that is referred to the Committee by taking                         into account the matters relating to the application that the Minister                           must take into account in considering the application; and

         (b)     must recommend to the Minister whether to approve, for the purposes                             of section 30-230 of the Act, a gift to which the application relates;                             and

         (c)     if the Committee recommends approval of a gift¾recommend the                           value of the gift for the purposes of that section.

 

Directions by the Minister

         11.     (1)    Subject to subclause (2), the Minister may give a direction to the Committee that is not inconsistent with these Guidelines.

        

         (2)     The Minister must not give the Committee a direction to make a particular recommendation in relation to an application.

 

Recommendations to the Minister

         12.     (1)    Subject to subclause (2), the Minister must, in considering an application, take into account a recommendation of the Committee.

        

         (2)     The Minister must not take into account a recommendation of the Committee unless the recommendation relates to a matter that the Minister must take into account in considering the application.

PART 5¾APPROVAL OF APPLICATIONS

Consideration of applications

          13.     (1)    As soon as possible after the end of a financial year, the Minister must consider the applications made for that financial year.

         (2)       As soon as possible after 31 December 1997, the Minister must consider the applications made for the financial years 1995-96 and 1996-97.

         (3)       In considering the applications, the Minister must have regard to the criteria set out in these Guidelines.

         (4)       The Minister may decline to approve an application if he or she considers that the application, whether considered in isolation or in comparison with other applications, does not sufficiently meet the criteria set out in these Guidelines.

         (5)       The Minister may give effect to subclause (4) even if doing so results in the total value of certificates given for a financial year being less than the maximum approval amount for that financial year.

Certificates

         14.       (1)    If an application is approved, the Minister must give the applicant a certificate about the application.

         (2)       The certificate must:

             (a)   state that the gift to which the application relates is approved for the purposes of section 30-230 of the Act; and

             (b)   state the value of the gift for that section; and

             (c)   contain any other information that the Commissioner, by notice in writing, requires.

[NOTE:  A taxpayer should retain a certificate to help with the making of a claim for the tax concession after the death of the taxpayer.]

PART 6—REVIEW OF CERTAIN DECISIONS

Application for review

         15.       Application may be made to the Administrative Appeals Tribunal for review of a decision of the Minister whether to give the agreement mentioned in subparagraph 5 (2) (b) (ii).

[NOTE:  See s. 27A of the Administrative Appeals Tribunal Act 1975 for provisions regarding the giving of notice of the making of a reviewable decision.]

SCHEDULE

THIS DEED is made the                         day of        [month and year]

BETWEEN

[        name          ]

of [   address     ] (“the Donor”)

AND

[        name          ]

of [   address     ] (“the Donee Institution”)

AND

THE COMMONWEALTH OF AUSTRALIA (‘the Commonwealth’) represented by the Department of Communications and the Arts.

GIVEN that:

A.                 The Commonwealth has established a program known as the Cultural Bequests Program under the Tax Incentives for the Arts Scheme.

B.                  The Donor has applied for a certificate from the Minister for Communications, the Information Economy and the Arts under section 30-235 of the Income Tax Assessment Act 1997 approving a gift by will of the item described in Schedule A (“the Item”) for the Cultural Bequests Program.

C.                  The Cultural Bequests Program Guidelines (No. 1) 1997 made under section 30-235 of the Income Tax Assessment Act 1997 (“Guidelines”) provide in paragraph 4(3)(e) that an application must be accompanied by the undertakings mentioned in clause 5 of the Guidelines.

NOW IT IS AGREED as follows:

1.      In this Deed words and phrases have the same meaning as are given to them in the Guidelines.

2.      The Donor warrants:

         (a)     that he or she holds unencumbered title to the Item; and

         (b)     that the Item is part of his or her personal collection and is not stock in trade.

3.     Subject to the issuing of a certificate under section 30-235 of the Income Tax Assessment Act 1997 by the Minister for Communications, the Information Economy and the Arts approving a gift by will of the Item for the Cultural Bequests Program, the Donor undertakes:

         (a)     to give the Item by will to the Donee Institution by including in a will, or making a will containing, a bequest in the form set out in Schedule B and to do all things that may be necessary to ensure that the Item devolves upon the Donee Institution in the manner provided above; and

         (b)     not to encumber the Item or to dispose of the item otherwise than by will to the Donee Institution as set out in paragraph (a); and

         (c)     to ensure that the Item is properly cared for and maintained until it is delivered to the Donee Institution pursuant to the bequest; and

         (d)     not to do or omit to do anything in relation to the Item to diminish its value; and

         (e)     to inform the Donee Institution of the identity and contact details of his or her Executor(s) at the time the bequest referred to in Schedule B is included in his or her will and of any changes from time to time to those details.

4.      Subject to the issuing of a certificate under section 30-235 of the Income Tax Assessment Act 1997 by the Minister for Communications, the Information Economy and the Arts approving a gift by will of the Item for the Cultural Bequests Program, the Donee Institution undertakes that it will provide a detailed condition report of the gift to the Commonwealth and the Donor, as soon as possible after approval.

5.      Subject to the issuing of a certificate under section 30-235 of the Income Tax Assessment Act 1997 by the Minister for Communications, the Information Economy and the Arts approving a gift by will of the Item for the Cultural Bequests Program, the Donee Institution undertakes that it will accept the Item as part of its permanent collection unless, since the date of the certificate issued under section 30-235 of the Income Tax Assessment Act 1997, the Item has been damaged or it has deteriorated to the extent that the Donee Institution does not wish to accept it and the Minister agrees to such a decision by the Donee Institution.  If the Item is not accepted by the Donee Institution under this clause, no tax deduction will be available in respect of the Item under the Cultural Bequests Program.

6.      The Donee Institution undertakes that once it has accepted the Item under clause 5, it shall:

         (a)     keep the Item in accordance with its collection management policy, as amended from time to time; and

         (b)     provide public access to the Item in accordance with its public access policy, as amended from time to time.

7.      If the Donee Institution is not a corporation or a statutory authority the person providing the undertakings in clause 4, 5 and 6 on behalf of the Donee Institution warrants that:

         (a)     if the Donee Institution is a fund which is the object of a trust - that he or she is a trustee or one of the trustees of the fund; and

         (b)     in any other case - that he or she has authority to enter arrangements on behalf of the Donee Institution that have a binding effect on the management and operation of the Donee Institution.

8.      Any notice, request or other communication to be given under this Deed must be in writing, signed for and on behalf of the relevant party, and either delivered by hand or posted or transmitted electronically to the other party at the address, as the case may be, as follows:

         (a)     in the case of the Donor:    [        address     ];

         (b)     in the case of the Donee Institution:    [        address     ];

         (c)     in the case of the Commonwealth:       [        address     ];

         or to any other addresses as may be notified from time to time.

9.      No variation of this Deed is effective unless in writing and signed by each party.

 

10.    This Deed is to be governed by, and construed in accordance with, the law for the time being in force in the Australian Capital Territory.


SCHEDULE A

THE ITEM

[Describe the Item in detail and attach photographic evidence]

 

SCHEDULE B

FORM OF BEQUEST

(a)     I GIVE AND BEQUEATH [insert description of the Item consistent with the description in Schedule A] to [Donee Institution] PROVIDED THAT if, at the date of my death, [Donee Institution] has:

         (i)      amalgamated with another institution, this bequest shall take effect as if it had been made to the amalgamated institution;

         (ii)    changed its name or constitution or both, this bequest shall take effect as if it had been made to the institution with either, or both, the name or constitution as altered;

         (iii)   transferred all its assets to another institution, this bequest shall take effect as if it had been made to the institution to which the assets have been transferred; or

         (iv)   ceased to exist, this bequest shall take effect as if it had been made to such other institution as is determined by the Commonwealth Taxation Incentives for the Arts Committee, after consultation with my trustees, as the most appropriate institution to receive the bequest.

(b)    I DECLARE that the receipt of a proper officer for the time being of the institution to which the bequest is made under paragraph (a) shall be a full discharge for my trustees in relation to the bequest.

 


THIS DEED is made as follows:

SIGNED, SEALED and       )

DELIVERED by the said    )

(Donor     ]                            )

                                                )

....................................  )

 

in the presence of

 

..................................... )

 

 

SIGNED, SEALED and       )

DELIVERED on behalf of)

[Donee Institution ] by       )

[name]                                   )

[position]                              )

                                                )

.................................               )

 

in the presence of

 

.................................               )

 

 

SIGNED, SEALED and       )

DELIVERED on behalf of )

COMMONWEALTH OF     )

AUSTRALIA by                   )

[name]                                   )

the [position]                        )

of [workplace]                     )

 

....................................  )

 

in the presence of

 

....................................  ) .