Document ID: chunk:federal_register_of_legislation:C2010C00406:clause:2_22:p2
Version: federal_register_of_legislation:C2010C00406
Segment Type: clause
Provision Reference: sch 2 cl 22 (pt 2/6)
Character Range: 16316–19117

Business Registrar may enter in the *Australian Business Register in relation to the fund a statement that it is a private ancillary fund.

Note 1: An entry (or lack of entry) of a statement required by this section does not affect whether a trust is a private ancillary fund.

Note 2: The Australian Business Register will also show if a private ancillary fund is endorsed as a deductible gift recipient: see section 30‑229 of the Income Tax Assessment Act 1997.

 (2) The *Australian Business Registrar must take reasonable steps to ensure that a statement appearing in the *Australian Business Register under this section is true. For this purpose, the Registrar may:
 (a) change the statement; or
 (b) remove the statement from the Register if the statement is not true.

Administrative penalties

426‑120  Administrative penalties for trustees of private ancillary funds

Administrative penalty

 (1) The persons mentioned in subsection (2) are jointly and severally liable to an administrative penalty if:
 (a) a trustee of a *private ancillary fund holds the fund out as being endorsed, entitled to be endorsed, or entitled to remain endorsed, as a *deductible gift recipient; and
 (b) the fund is not so endorsed or entitled.

 (2) The persons are:
 (a) each person who is a trustee of the fund; and
 (b) each director of each *constitutional corporation that is a trustee of the fund, if:
 (i) any of the penalty cannot reasonably be recovered from the constitutional corporation; and
 (ii) the constitutional corporation is not a registered trustee company.

Note: A person mentioned in paragraph (2)(a) may, in certain circumstances, not be a constitutional corporation: see item 28 of Schedule 2 to the Tax Laws Amendment (2009 Measures No. 4) Act 2009 (former prescribed private funds).

 (3) The amount of the penalty is:
 (a) the amount specified in the *private ancillary fund guidelines under paragraph 426‑110(b); or
 (b) the amount worked out in accordance with the method specified under that paragraph.
The private ancillary fund guidelines may specify different penalties or methods for different circumstances.

 (4) The penalty must not be reimbursed from the fund.

Note: Division 298 in this Schedule contains machinery provisions for administrative penalties.

Defences for directors

 (5) Paragraph (2)(b) does not apply to a director if:
 (a) the director was not aware of the holding out mentioned in paragraph (1)(a) and it would not have been reasonable to expect the director to have been aware of that holding out; or
 (b) the director took all reasonable steps to ensure that the holding out mentioned in that paragraph did not occur; or
 (c) there were no such steps that the director could have taken.

 (6) In determining what is reasonable for the purposes of