On 4.11.21, the Federal Court rejected the ATO’s interpretation of the word “school” in setting aside an ATO decision disallowing the Buddhist Society of Western Australia’s objection to a decision to revoke its status as a deductible gift recipient as a ‘school building fund’.

The Buddhist Society of Western Australia (“the Society”) was endorsed as a deductible gift recipient (DGR) for the operation of the Dhammaloka Buddhist Centre Building Fund. However, after an investigation into the Centre, the ATO concluded that the buildings at the Centre were not used as a school or college, as required by Item 2.1.10 of the table to s 30-25(1) of the ITAA 1997. The ATO therefore revoked the Society’s DGR status, pursuant to s 426-55(1)(a) of Sch 1 of the TAA.

The Society’s objection to the revocation of its DGR status was disallowed and it appealed to the Federal Court under Pt IVC of the TAA. The Society also applied under the ADJR Act for judicial review of the objection decision. (In The Buddhist Society of Western Australia Inc v CofT [2020] FCA 1126, the Court decided that the 2 applications should be heard together.)

The Court firstly dismissed the appeal under Pt IVC, finding that the Society had failed to discharge the burden of proof imposed on the Society by s 14ZZO(b) of the TAA – namely that the revocation decision should not have been made or should have been made differently. This stemmed from findings that the ATO was not bound by the information and documents it had obtained during its investigation from the Society pursuant to s 426-40 of Sch 1 of the TAA and that the exercise of the power under s 426-40 did not alter the evidentiary burden imposed on the Society under s 14ZZO(b).

The Society was successful, however, on the ADJR review. The Court found that the ATO had misunderstood the law when stating in its objection decision that the Dhammaloka Centre was not a “school” within the ordinary usage of that word, as it was not a place with the primary function of providing regular, ongoing and systematic instruction in a course of non-recreational education. The Court concluded that the words “regular, ongoing and systematic instruction” do not form part of the ordinary meaning of “school”. In addition, the ordinary meaning of “school” does not require the course of education to be vocational as opposed to recreational.

The Court also found that the ATO had misunderstood the law when it adopted the “factors” identified by Sundberg and Merkel JJ in the Australian Airlines case (and those expressed at para 18 of Ruling TR 2013/2), as prerequisites of the definition of “school”.

As a result, the Court set aside the objection decision and ordered that the matter be remitted to the ATO for further consideration and determination.

[This is an interesting case, where the ADJR (Judicial Review) approach was more effective than the Part IVC basis of objecting – where the taxpayer ‘onus of proof’ was (yet again) a significant factor, weighing against the taxpayer Society. See ‘Editorial Comment’ part, of this related TT article, about suggestions for reform of the taxpayer ‘onus of proof’.]

(The Buddhist Society of Western Australia Inc v CofT (No 2) [2021] FCA 1363, Federal Court, McKerracher J, 4 November 2021.) [LTN 216, 9/11/21]

[Tax Month – November 2021Previous 2021] 9.11.21


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