Private ruling: Exempt entities -state and territory bodies
Date of advice: 27 June 2022
Published: October 2022
Ruling period: 1 July 2022 to 30 June 2026 (2023, 2024, 2025 and 2026 income years)
Date scheme commenced: 1 July 2022

Ruling: Q1: Is the receipt of premiums and other amounts (being those specified in Legislation C) by Entity D (acting in its own right rather than in any capacity as a trustee) for or in connection with a policy of insurance issued under Legislation C assessable income of Entity D? | A1: No. | Q2: Is the ordinary income and statutory income of the Insurance Fund, which is a fund established under Legislation E for the benefit of a class of entities in the relevant state or territory, exempt from income tax under either: • item 5.2 of section 50-25 of Income Tax Assessment Act 1997 ("ITAA 1997"); or • in the alternative, under Division 1AB of Part III of Income Tax Assessment Act 1936 ("ITAA 1936")? | A2: Yes.

Relevant facts and circumstances: 1. The applicant is Agency A. According to Agency A's annual report for 2021, it manages several government related funds and statutory insurance schemes in an Australian state or territory. This ruling is about one of these schemes: we'll call it Scheme B. 2. Agency A was established under legislation passed by the relevant Australian state or territory parliament. We'll refer to this legislation as Legislation C. 3. Legislation Ccontains provisions about Agency A's constitution and management. We'll summarise what we think are the most relevant provisions. • Legislation C establishes a body corporate with a corporate name. • Agency A's board of directors consists of the chief executive, and up to X other directors appointed by a Minister in the relevant Australian state or territory government. There are more than two members on the board. • All Agency A's decisions will be made by its board or under its authority. Things done by the board are taken to be done by Agency A. The board is to keep the Minister informed about Agency A's activities, and will determine general policies and give directions to the chief executive. • The Minister may give the board a written direction if satisfied it's necessary to do so in the public interest. Must first consult with the board before giving a direction, and request the board to give advice about whether the direction wouldn't be in Agency A's best interests. • The board will employ a person as chief executive in consultation with the Minister. 4. Legislation C also contains provisions Agency A's functions. Agency A will: • act for an entity which we'll call Entity D under other legislation (passed by the relevant state or territory parliament) which we'll call Legislation E • provide services (including staff and facilities) for any relevant authority, person, or body about any insurance or compensation scheme they administer or provide • enter agreements or arrangements to provide services of any kind or for the purposes of exercising Entity D's functions • monitoring the performance of the insurance or compensation schemes under which it provides services. 5. Legislation C also imposes other obligations on Agency A. It must prepare and submit a statement of business intent to the Minister and the Treasurer every year. That report sets out a business plan covering Agency A's objectives, activities, performance targets, and other matters required by the Minister. Agency A must also determine investment strategies for the scheme funds it administers, and report to the Minister at least every 6 months on their investment performance. Scheme B is one of those scheme funds. Entity D is a separate legal entity, but Agency A acts in its name to manage Scheme B 6. The relevant Insurance Fund is established and governed by Legislation E. We'll summarise some provisions in the Legislation E which we think are relevant to Agency A and the Insurance Fund. 7. The Legislation E includes provisions about Entity D's establishment, functions, and authority. 8. The Legislation E makes statements about Entity D's character. It says Entity D: • is a legal entity • can sue and be sued in the name of Entity D • may do all things necessary to exercise its functions (including deal with property) • isn't and doesn't represent the relevant state or territory (or any authority under it) • isn't a government agency for the purposes of procurement legislation in the relevant state or territory. 9. The Entity D is a licensed insurer. Legislation E says Entity D: • is taken to be a licensed insurer as if it were the holder of a licence under the relevant Act without conditions • Entity D has functions necessary or convenient to function and operate as a licensed insurer, and other functions conferred by law • may issue directions to relevant entities about their insurance arrangements. 10. The Legislation E also has provisions about the relationship between Agency A and Entity D. We'll summarise the effect of some provisions in Legislation E. • Agency A acts for Entity D. Anything done or omitted to be done by Agency A on Entity D's behalf or in Entity D's name is taken to have been done or omitted by Entity D. • When acting for Entity D, Agency A has and may exercise all its functions under any law. • Agency A has additional functions as necessary or convenient to enabling it to act for Entity D and exercise its functions. It must exercise those functions efficiently, including properly collecting insurance premiums and paying insurance claims. Those functions can be exercised without restriction by other Agency A functions. • The Entity D's liabilities can only be satisfied from the Insurance Fund. They aren't liabilities for Agency A, the relevant state or territory, or any authority in that jurisdiction. Liabilities incurred by Agency A when acting for Entity D are liabilities for Entity D only, and aren't liabilities for either Agency A or the relevant state or territory. The Insurance Fund 11. The Legislation E also establishes an Insurance Fund and governs how it operates. We'll summarise some provisions in Legislation E about the Insurance Fund. 12. Legislation E has provisions relevant to the Insurance Fund's purpose and character. • The assets of the Insurance Fund are subject to a 'statutory trust' to be held on trust for authorised purposes (for the purposes of this edited version, we'll simply say the scheme's purpose is for the benefit of a particular class of entities in the relevant state or territory). • The Entity D is responsible for managing the Insurance Fund's operation including investing its assets. The assets can be invested as Entity D thinks fit, but this is subject to Agency A's investment strategies under Legislation C. • Relevant entities are entitled to participate in the distribution of any surplus in the Insurance Fund, and are responsible for meeting any deficit in the Insurance Fund, by the fixing of premiums, levies, and contributions. • The Insurance Fund's assets can't be applied to pay dividends to consolidated funds in the relevant state or territory even if required by a Minister's direction. • One provision says for all legal purposes, the relevant state or territory, Entity D, Agency A, and any other authority under that state or territory have no: o beneficial interest in or entitlement to the Insurance Fund's assets o liability to meet any deficit in the Insurance Fund o entitlement to any surplus in the Insurance Fund. • Another provision says the relevant state or territory, Entity D, Agency A, or any other authority under that state or territory aren't trustee of the Insurance Fund. 13. Premiums and some other receipts will be paid into the Insurance Fund and become part of its assets. Legislation E lists amounts. They include: • premiums received by Entity D under Legislation E insurance policies • include amounts paid to Entity D "in connection with any such policy of insurance" with a few listed examples [1] • income (including realised and unrealised capital gains) arising from investing the Insurance Fund's assets • money otherwise authorised to be paid into the Insurance Fund. 14. The Insurance Fund's assets can only be applied for purposes authorised under Legislation E. To loosely paraphrase, one provision says those purposes include: • meeting claims under insurance policies • paying direct expenses associated with insurance claims • paying Insurance Fund management expenses • paying rebates or refunds to relevant entities for overpaid premiums • payments required under any contract for re-insurance • meeting administrative costs (actuarial investigation, management, consultancy, audit) • exercising other Entity D functions • miscellaneous payments authorised under law. 15. The Insurance Fund has a custodian (Bank F) which holds legal title to the fund assets. Historical background 16. This paragraph has been removed for this edited version because of concerns it might allow the applicant or other relevant entities to be identified (including by a knowledgeable person or person within a community). 17. This paragraph has been removed for this edited version for the same reasons as paragraph 16. Table 1: removed for the same reasons as paragraph 16.

Relevant legislative provisions: Income Tax Assessment Act 1936 Section 24AM | Section 24AN | Section 24AO | Section 24AP | Section 24AQ | Section 24AR | Section 24AS | Section 24AT | Section 24AU | Income Tax Assessment Act 1997 Section 50-25 | Section 960-100

Reasons for decision: Summary: 18. No. Premiums and other amounts received under the scheme won't be assessable income for Entity D for two reasons. First, Entity D doesn't derive any income because it has no beneficial entitlement to receipts. Second, even if it did, Entity D is an exempt entity under Division 1AB. Our reasoning for Question 1 and Question 2 is interrelated, so we address both questions under the 'detailed reasoning' subheading. | Detailed Reasoning - Question 2: Is the ordinary income and statutory income of the Insurance Fund, which is a fund established under Legislation E for the benefit of a class of entities in the relevant state or territory, exempt from income tax under either: • item 5.2 of section 50-25 of Income Tax Assessment Act 1997 ("ITAA 1997"); or • in the alternative, under Division 1AB of Part III of Income Tax Assessment Act 1936 ("ITAA 1936")? | Summary: 19. Yes. The Insurance Fund's ordinary income and statutory income is exempt under Division 1AB, because its effectively controlled by the relevant state or territory government. While the Insurance Fund might also be exempt under item 5.2 of section 50-25, we don't need to determine this to resolve the Insurance Fund's status as an exempt entity. Our reasoning for Question 1 and Question 2 is interrelated, so we address both questions under the 'detailed reasoning' subheading. | Detailed Reasoning - Detailed reasoning: 20. We need to address three subsidiary issues to resolve the ruling questions. • Subsidiary issue 1: are Entity D and the Insurance Fund 'entities' for tax purposes which can have assessable income? • Subsidiary issue 2: are amounts received by the entities under the scheme ordinary or statutory income? • Subsidiary issue 3: does any exemption apply? | Detailed Reasoning - Subsidiary issue 1: are Entity D, and the Insurance Fund, 'entities' for tax purposes which can have assessable income?: 21. Very broadly, Australian income tax legislation taxes entities on taxable income. Assessable income is relevant to determining taxable income. Exempt income and non-assessable non-exempt income isn't assessable income. (Broadly, amounts are made exempt or non-assessable non-exempt by specific tax provisions.) However, only entities can have tax obligations and can have practical consequences for receiving assessable income. See generally Divisions 4, 6 and 9. 22. For tax purposes, entities include bodies corporate, bodies politic, partnerships and trusts. Section 960-100 gives the full list. It says entity' means any of the following: • an individual • a body corporate • a body politic • a partnership • any other unincorporated association or body of persons (excluding a non-entity joint venture) • a trust • a superannuation fund • an approved deposit fund. 23. Many of these entity types aren't relevant to this ruling. For example, there's no suggestion that either Entity D or the Insurance Fund are individuals, partnerships, associations, or bodies of persons. While the Insurance Fund is a 'fund', Scheme B can't be described as a superannuation or approved deposit fund. The entities don't pay retirement benefits, and they seem unlikely to have an RSE licence from APRA. [2] 24. We'll address the three remaining entity types: body corporate, body politic, and trust. The ATO has guidance about these phrases in MT 2006/1. [3] We summarise and apply some points from MT 2006/1 and other relevant sources in the following paragraphs. | Detailed Reasoning - The Entity D is a body corporate, but the Insurance Fund isn't.: 25. MT 2006/1 at paragraphs 30-34 makes the following points. • Body corporate isn't defined and takes its meaning from general law. • It means an artificial entity with a separate legal existence. It can act, hold property, enter legal contracts, and sue and be sued in its own name just like a natural person. • Bodies corporate may be created by common law, statute, or by registration under a statute. 26. The Entity D is a body corporate. Legislation E establishes Entity D as a legal entity, and says it can hold property, sue, and be sued. While Legislation E doesn't specifically use the phrase 'body corporate', Entity D has all the characteristics of a body corporate identified by MT 2006/1. 27. However, the Insurance Fund won't be. Legislation E establishes the Insurance Fund. Legislation E doesn't say that the fund is a separate entity, can sue, be sued, or do anything in its own name. | Detailed Reasoning - Neither entity is a body politic: they aren't governments: 28. See MT 2006/1 at paragraphs 38-44. • Body politic isn't defined and takes its meaning from general law. • It includes the Crown in right of the Commonwealth, or a State or Territory. • Government departments aren't stand-alone bodies politic. 29. Neither entity is a body politic. They can't be described as governments. A provision in Legislation E says Entity D isn't the government in the relevant state or territory, or an authority under it. Another provision in Legislation E says the relevant state or territory doesn't have any beneficial interest or entitlement to the Insurance Fund's assets. Insurance Fund assets are segregated from consolidated revenue for the relevant state or territory. Its custodian is Bank F. Therefore, we don't think the Insurance Fund can be treated as an extension of the relevant state or territory government either. | Detailed Reasoning - The Insurance Fund is a trust: the custodian is its trustee, and Entity D is its agent: 30. Trusts are a legal relationship between a trustee and a beneficiary, in respect of certain property. According to Jacob's Law of Trusts, the elements of that relationship are that a trustee holds property (usually legal title, but occasionally equitable title), under an obligation to deal with that property, for the benefit of others (or some purpose permitted by law). [4] Very broadly, while trustees have duties at general law not to delegate their obligations, those principles can be modified by the trust instrument or by statute. For example, state trustee legislation authorises trustees to delegate duties and engage agents in some circumstances. [5] 31. Here, the custodian holds legal title to the fund assets. Under the scheme legislation, those assets can only be used for insurance scheme purposes. Entity D has statutory obligations to collect amounts, pay them into the fund property, and use those funds for Scheme B purposes prescribed in the legislation. The scheme legislation says Entity D has no interest in the fund assets, and isn't a trustee. 32. We think the scheme legislation establishes a trust: it has a custodian holding property, which it can't use for itself, but is reserved for a statutory purpose. • The custodian can be characterised as a trustee: it holds legal title to the property. We don't think it could have any equitable or beneficial entitlement, because the scheme legislation says fund assets can only be used for scheme purposes. That would prevent the custodian appropriating those assets, for example, by applying them for its own business or investment purposes. • We don't think it matters that the custodian has limited (if any) practical duties. The legislation at least imposes a negative obligation on the custodian not to use fund assets for its own purposes. Further, the scheme legislation establishes Entity D as the entity which administers Scheme B. We think Scheme B should be characterised as establishing Entity D as an exclusive and absolute agent for the custodian's duties as trustee. In other words, Entity D carries out all the trustee's active duties (that is, beyond passively holding property). We think that's analogous to a trust instrument or trustee act authorising delegation or agency under general trust law. Legislation E has effectively authorised that agency or delegation by establishing it. • The fund assets are trust property. • Those assets are to be used for the purpose of administering Scheme B, which we characterise as a public insurance scheme. | Detailed Reasoning - Conclusion on subsidiary issue 1: Entity D and the Insurance Fund are both entities for tax purposes: 33. Both Entity D and the Insurance Fund are entities for tax purposes. The Entity D is a body corporate. The custodian would be recognised as an entity in its capacity as trustee for the Insurance Fund. Both fit under the definition of entity for tax purposes in section 960-100. Therefore, they can derive assessable income and have tax obligations. | Detailed Reasoning - Relevant law: a taxpayer's assessable income includes ordinary income which they have derived beneficially.: 34. Assessable income includes ordinary and statutory income: see sections 6-5 and 6-10. Ordinary income is income according to ordinary concepts. Statutory income is included under statutory provisions. 35. Ordinary income isn't defined, but its meaning has developed through case law. The ATO states a few propositions about the characteristics of ordinary income as extracted from case law in TR 2006/3 [6] at paragraph 85. Some propositions we think are relevant here include: • the nature of a payment must be determined by its character in the hands of the recipient, not the payer • all facts need to be considered, taking a broad view of a taxpayer's situation • payments for purposes outside the recipient's business aren't income • periodicity, regularity, or recurrence may show a payment is income • payments that are consideration for services are generally income. 36. The ATO view is that many amounts received by an insurer would be assessable income. IT 2663 [7] says that amounts received by a general insurer from an insured party, including premiums, and related amounts like stamp duty, fire brigade charges, levies, and duties are assessable income for the insurer, as ordinary income. See paragraphs 45, 46, and 48 to 50 of IT 2663. 37. However, receipts will only be ordinary income if they are derived by the taxpayer in circumstances where the taxpayer is beneficially entitled to the money. The ATO accepts this proposition in TD 2008/9 [8] at paragraph 10: 10. For an amount to be income according to ordinary concepts it must be income derived by the taxpayer. The proposition that a taxpayer will not derive ordinary income unless they are beneficially entitled to the amount has longstanding judicial support. 38. Importantly, this proposition doesn't depend on the taxpayer being characterised as being a trustee when they receive the amount: 14. The decisions in these cases demonstrate that a taxpayer must be beneficially entitled to an amount for the amount to be derived by the taxpayer as ordinary income. Reiter illustrates the application of this proposition in a situation where the taxpayer's lack of beneficial entitlement coincided with the taxpayer not being legally entitled to the amounts they had received. It was not a case where the court found that the taxpayer had in any sense become a trustee in relation to these amounts... Applying these concepts: Entity D won't derive income because it isn't beneficially entitled, but the same reasoning doesn't extend to the Insurance Fund. 39. Here, Entity D will receive amounts including premiums, amounts paid connected with insurance policies, and income from investing the insurance fund's assets. Those amounts will be paid to the Insurance Fund and become its assets. 40. It seems likely that many (if not all) amounts received by an insurer would have the character of ordinary income. Licensed insurers receive premiums paid by relevant entities, and receiving other amounts like late payment fees. Those receipts will be received periodically and regularly in the ordinary course of their business. (See also paragraphs 45, 46, and 48 to 50 of IT 2663.) A government insurer under a government scheme wouldn't necessarily be any different to an entity running a private insurance business. 41. However, here Entity D won't derive the amount because it isn't beneficially entitled to them. Legislation E says that Entity D has no beneficial interest in or entitlement to the fund assets. Legislation E also says any premiums received by Entity D, and other amounts paid to it connected with insurance policies, will be paid to the fund, and become fund assets. The Entity D can't deal with these receipts as it sees fit: it must pay them into the fund, and they can only be used for scheme purposes. We've characterised it as an agent for the Insurance Fund: see paragraph 32. In that capacity, it can't be a beneficial owner, so following TD 2008/9, it won't have derived assessable income. 42. We don't think it matters that Legislation E says Entity D isn't a trustee for the Insurance Fund. Following TD 2008/9, a taxpayer can lack beneficial entitlement even if it isn't a trustee. 43. The same reasoning doesn't extend to the Insurance Fund. The custodian, in its capacity as a statutory trustee for the Insurance Fund , would have beneficial ownership over receipts. Those receipts would be applied to the fund's purpose by Entity D carrying out its functions as the fund's agent. Therefore, it's possible that receipts under the scheme could be included in the Insurance Fund's assessable income, unless an exemption applies. (We determine that the Insurance Fund is an exempt entity in subsidiary issue 3.) | Detailed Reasoning - Conclusion on subsidiary issue 2: scheme receipts aren't ordinary income for Entity D: 44. Receipts under Scheme B aren't assessable income for Entity D, but the same doesn't necessarily follow for the Insurance Fund. | Detailed Reasoning - Subsidiary issue 3: does any exemption apply?: 45. Ordinary and statutory income can otherwise be made exempt under statutory provisions. Some provisions make specific types of income exempt. Other provisions make all ordinary and statutory income received by certain entities (exempt entities) exempt income. 46. Two exempt income provisions relevant to government bodies include section 50-25 and section 24AM. Section 50-25 allows an exemption for entities including public authorities. Section 24AM allows an exemption for state and territory bodies, known as 'STBs' for short. We'll address the exemption in section 24AM. (We don't need to determine whether either Entity D or the Insurance Fund could also qualify under section 50-25, because we conclude they are both STBs under section 24AM). | Detailed Reasoning - The STB exemption in Division 1AB: foundation concepts: 47. State and territory bodies will be exempt from income tax if they meet any of five tests in Division 1AB, and aren't excluded. • Section 24AM says the income of a State/Territory body (known as an STB) is exempt from income tax unless section 24AN (about excluded STBs) applies. • A body will be an STB if it meets the conditions in any of five alternative provisions in sections 24AO through 24AS. Broadly, those provisions are about whether government entities meet certain control tests over the body. • Section 24AT says a government entity means a State, Territory, municipal corporation or other local governing body, or another STB that isn't an excluded STB. • Section 24AT says excluded STBs are include entities prescribed by regulations, municipal corporations, other local governing bodies, public education institutions, public hospitals, or superannuation funds. 48. To apply Division 1AB, we'll test Entity D and the Insurance Fund to see if they are: • STBs (under any of the five tests) • excluded STBs. | Detailed Reasoning - The Entity D and the Insurance Fund are both 'bodies' because they are legal entities: 49. Since the STB exemption will only apply to a 'body', we need to determine whether Entity D and the Insurance Fund meet that description. 50. The word 'body' (as a stand-alone phrase) isn't defined in tax legislation, so we look to its ordinary meaning for guidance. 51. We'll cite two dictionaries and extrinsic material. • According to the Macquarie Dictionary [9] , meanings for 'body' include (at meaning 17) "a collective group, or an artificial person". It gives 'body politic' and 'body corporate' as examples. • The Australian Oxford Dictionary [10] (at meaning 4) says "a group of persons regarded collectively, especially as having a corporate function". It gives 'governing body' as an example. • The Explanatory Memorandum to the bill which introduced Division 1AB [11] doesn't explain the intended meaning of 'body as a stand-alone phrase. However, at paragraph 1.17, it suggests that a trust fund set up under a deed (without legislation) could qualify as an STB (under section 24AR). 52. We think both Entity D and the Insurance Fund are 'bodies' in the relevant sense. We think the phrase takes a legal meaning here, meaning an organisation or entity with legal capacity to act. Entity D is established as a legal entity under Legislation E. (As explained at paragraph 26, we think it's a body corporate.) The Insurance Fund is a trust: see paragraph 32. While the trust property (fund) itself isn't an entity with legal capacity, the property is held by a custodian. The custodian (or trustee) holds legal title to the assets. We think the custodian in its capacity as trustee for the fund qualifies as a 'body' for Division 1AB purposes. | Detailed Reasoning - Applying the STB Tests: both Entity D and the Insurance Funds are STBs under the second and third tests: 53. We apply the five tests in Table 2 , and the excluded STB tests in Table 3 . To state our conclusions, we think • both Entity D and the Insurance Fund meet the second and third tests (sections 24AP and 24AQ) for the reasons given in Table 2 • neither Entity D nor the Insurance Fund are excluded STBs for the reasons given in Table 3 . Table 2: Applying the 5 STB tests | Detailed Reasoning - Applying them to Entity D and the Insurance Fund: Section 24AO ( first way in which a body can be an STB) A body is an STB if: (a) it is a company limited solely by shares; and (b) all the shares in it are beneficially owned by one or more government entities. Not met. The Entity D is a company, but it isn't limited by shares. The Insurance Fund - taken as a trust - isn't a company. There aren't any shares (in the trust) for a government entity to own. We don't think the custodian - Bank F - is relevant outside its trustee capacity. Section 24AP ( second way) A body is an STB if: (a) it is established by State or Territory legislation; and (b) it is not a company limited solely by shares; and (c) the legislation provides that it must distribute all of its profits (if any) only to one or more government entities; and (d) if the legislation makes provision as to the way its net assets may be distributed if it is dissolved or wound up - the provision is that, if it is dissolved, all of its net assets (if any) must be distributed only to one or more government entities. Not met. Paragraph (a) is met. Both Entity D and the Insurance Fund are established by legislation in the relevant state or territory. Paragraph (b) is met. Both bodies are not companies limited by shares. Paragraph (c) isn't met. Amounts received by Entity D must be paid into the Insurance Fund. The Insurance Fund can only be used to administer Scheme B, it can't be paid to government entities. Paragraph (d) isn't met. We haven't identified any winding up clause for either entity in the legislation. Section 24AQ (third way) A body is an STB if: (a) it is established by State or Territory legislation; and (b) it is not a company limited solely by shares; and (c) the legislation gives the power to appoint or dismiss its governing person or body only to one or more government entities. Section 24AU says under section 24AQ, 24AR and 24AS (the third, fourth, and fifth tests) powers to appoint, dismiss, or direct given to Governors, Ministers, or heads of departments are taken to be held by government entities. The Explanatory Memorandum [12] at paragraphs 1.18 and 1.19 said that this appointment or dismissal power: i. would be satisfied if members of the governing body had to be government nominees ii. wouldn't be satisfied if a member had to occupy a particular position and the government couldn't reject them iii. would be met where government could appoint only one director with overriding powers. This is met. Paragraphs (a) and (b) are met: see previous cell. Paragraph (c) is also met for both Entity D and the Fund. i. Legislation E sets up Agency A as the effective controller of Entity D, and by extension, the Insurance Fund. While the Insurance Fund has a nominal trustee (the custodian, currently Bank F), it doesn't have any active functions. The Entity D effectively controls it in its capacity as a trustee . Legislation E would prevent the custodian using the assets in any way outside its capacity as trustee (such as appropriating the trust property for non-scheme purposes). ii. A provision in Legislation C allows the Minister in the relevant state or territory to directly appoint or dismiss the entire board except for one member (the board has more than two members). iii. The remaining board member is the chief executive. The chief executive is appointed by the remaining board members, after consulting the Minister. While the Minister doesn't directly appoint the chief executive, the Minister could indirectly determine that appointment through appointing, or replacing the remaining members, giving them instructions or directions, or a combination of those actions. In substance, Legislation C gives a government entity (the relevant state or territory government, through the Minister) the power to appoint or dismiss the entire Agency A board. This is similar to the Explanatory Memorandum's example where a single government nominee has overriding powers. Section 24AR (fourth way) A body is an STB if: (a) it is established by State or Territory legislation; and (b) it is not a company limited solely by shares; and (c) the legislation gives the power to direct its governing person or body as to the conduct of its affairs only to one or more government entities. This is met. Paragraphs (a) and (b) are met: see previous cell. Paragraph (c) is also met for both Entity D and the Fund. i. Legislation E sets up Agency A as the effective controller of Entity D, and by extension, the Insurance Fund. ii. A provision in Legislation C gives the Minister the power to issue directions to Agency A if satisfied this is necessary in the public interest. The board must comply. iii. The Minister must first consult the board and request their advice. While the Minister is obliged to consult, and form an opinion that the direction is necessary, the Minister is empowered to direct how Agency A conducts itself. Through the Minister, a government entity (the relevant state or territory government) has the power to direct both Entity D and the Fund. The Minister can also require the Board to resubmit a business plan. Arguably that falls short of a 'power to direct' but in practice, it would allow the Minister to recommend changes until the Board complied with the Minister's wishes. Section 24AS (fifth way) A body is an STB if: (a) it is not a company limited solely by shares; and (b) it is not established by State or Territory legislation; and (c) all the legal and beneficial interests (including, but not limited to, interests as to income, profits, dividends, capital and distributions of capital) in it are held only by one or more government entities; and (d) all the rights or powers (if any) to vote, appoint or dismiss its governing person or body and direct its governing person or body as to the conduct of its affairs are held only by one or more government entities. Not met. Paragraph (b) isn't met because both Entity D and the Insurance Fund are established by legislation in the relevant state or territory. Paragraph (c) isn't met. Amounts received by Entity D must be paid into the Insurance Fund. The Insurance Fund can only be used to administer the scheme, it can't pay dividends or other amounts to government entities for other purposes. Paragraphs (a) and (d) are met for reasons given in earlier cells. Table 3: the excluded STB tests | Detailed Reasoning - Applying them to Entity D and the Insurance Fund: Section 24AT WHAT DO EXCLUDED STB , GOVERNMENT ENTITY AND TERRITORY MEAN? In this Division: excluded STB means an STB that: (a) at a particular time, is prescribed as an excluded STB in relation to that time; or Note: section 24AV says regulations can prescribe excluded STBs if all States and Territory consent. We aren't aware of any regulations (currently in force) prescribing excluded STBs. (b) is a municipal corporation [13] or other local governing body (within the meaning of section 50-25 of the Income Tax Assessment Act 1997 ); or Not met. Neither entities have anything to do with local government. (c) is a public educational institution to which any of paragraphs 50-55(1)(a) to (c) of the Income Tax Assessment Act 1997 applies; or Not met. Neither entity is an educational institution. (d) is a public hospital to which any of paragraphs 50-55(1)(a) to (c) of the Income Tax Assessment Act 1997 applies; or Not met. Neither entity is a public hospital. (e) is a superannuation fund. The Entity D and the Insurance Fund aren't superannuation funds - see paragraph 23 and footnote 8. | Detailed Reasoning - Conclusion on subsidiary issue 3: both Entity D and the Insurance Fund are exempt entities: 54. It follows that both Entity D and the Insurance Fund will be exempt entities under Division 1AB. All their income will be exempt under section 24AM. The exclusion in section 24AN won't apply. 55. For completeness, Entity D and the Insurance Fund could also qualify as public authorities under Item 5.2 of section 50-25. However, we haven't determined this issue in this private ruling. We don't need to determine this issue to resolve their status as exempt entities, because we've decided that they are both STBs. [1] These examples include late premium payment fees, amounts repaid by certain entities, and money recovered under a re-insurance contract. [2] See the definitions of 'superannuation fund' and 'approved deposit fund' in section 10 of the Superannuation Industry (Supervision) Act 1993. Broadly, both need to be indefinitely continuing funds. Superannuation funds must either be an indefinitely continuing fund, and a provident, benefit, superannuation or retirement fund, or a public sector superannuation scheme. Approved deposit funds need to be an indefinitely continuing fund maintained by an RSE licensee. ATO Interpretative Decision ATO ID 2009/67 Income Tax: Superannuation fund for foreign residents gives some guidance about the phrase 'provident, benefit, superannuation or retirement fund' used in the 'superannuation fund' definition. Citing case law, it says to meet that test, the fund's sole purpose must be to provide superannuation benefits to a member on them reaching a prescribed age, or upon their retirement, death, or other cessation of employment. [3] Miscellaneous Taxation Ruling MT 2006/1 The New Tax System: the meaning of entity carrying on an enterprise for the purposes of entitlement to an Australian Business Number. [4] Heydon, JD and Leeming, MJ (2016) Jacob's Law of Trusts in Australia, 8 th edn, LexisNexis Butterworths Australia [1.01, 1.04]. Accessed online 17 June 2022. [5] Heydon, JD and Leeming, MJ (2016) Jacob's Law of Trusts in Australia, 8 th edn, LexisNexis Butterworths Australia [17.23, 17.31]. Accessed online 16 June 2022. [6] Taxation Ruling TR 2006/3 Income tax: government payments to industry to assist entities (including individuals) to continue, commence or cease business. [7] Taxation Ruling IT 2663 Income tax: basis of assessment of general insurance activities. [8] Taxation Determination TD 2008/9 Income tax: are amounts mistakenly paid as salary or wages to employees (or as income support payments or worker's compensation amounts to persons), to which they are not beneficially entitled, but obliged to repay, 'ordinary income' under section 6-5 of the Income Tax Assessment Act 1997? [9] Macquarie Dictionary Publishers (2022) The Macquarie Dictionary online, accessed at https://www.macquariedictionary.com.au/features/word/search/?search_word_type=Dictionary&word=body on 7 June 2022. [10] Oxford University Press (2004), The Australian Oxford Dictionary (2 nd edn), accessed at https://www.oxfordreference.com/view/10.1093/acref/9780195517965.001.0001/acref-9780195517965?rskey=sSyZmm&result=2 on 7 June 2022. [11] Explanatory Memorandum (Senate) to the Taxation Laws Amendment Bill (No. 2) 1995. [12] Explanatory Memorandum (Senate) to the Taxation Laws Amendment Bill (No. 2) 1995. [13] The Macquarie Dictionary says a municipality is an area of land delineated for the purposes of local government. Macquarie Dictionary Publishers (2022) The Macquarie Dictionary online , accessed 31 May 2022.