The draft provides the first comprehensive guidance on when private and public ancillary funds ‘provide a benefit’ under the Taxation Administration (Private Ancillary Fund) Guidelines 2019 and the Taxation Administration (Public Ancillary Fund) Guidelines 2022 (collectively, the Guidelines). 

SW provided feedback on the Treasury’s Giving fund reforms in August. Based on our discussions we found that trustees were concerned that the change is inconsistent with their Funds’ objective of providing long-term charitable support.

This draft determination represents a significant development in the regulation of ancillary funds, clarifying key interpretive questions that have implications for fund trustees, donors, and related entities. The determination addresses two critical provisions, those being:  

Background to ancillary funds  

Ancillary funds benefit from favourable tax treatment, with income generally exempt from tax and donations to them deductible. However, these concessions could be misused for private benefit. To safeguard the philanthropic purpose, ancillary funds are governed by strict Guidelines that set out general principles requiring ancillary funds to be both philanthropic in character and vehicles for philanthropy. 

The Guidelines impose two key obligations relevant to TD 2025/D3: 

Private Ancillary Funds have been in focus recently with the Treasury recently releasing a consultation paper on Giving Fund reforms.  

Overview of TD 2025/D3 

The determination addresses two critical questions: 

What is a ‘benefit’? 

The Guidelines do not define ‘benefit’. TD 2025/D3 clarifies that a benefit includes an advantage, a profit, or a gain, and is not limited to the payment of money or transfer of property. 

The draft determination outlines that a benefit can have the following key characteristics: 

Provision of benefits under section 15(4) of the Guidelines 

As outlined in the Guidelines, a distribution is the provision of money, property or benefits. The draft determination provides the following requirements for a benefit to qualify as a distribution under section 15(4): 

Non-binding promises of future payment 

The new determination clarifies that a promise of future payment by an ancillary fund to a DGR is not a ‘distribution’ under section 15(4) of the Guidelines. A non-binding promise of a future payment creates, at most, a mere expectancy or possibility which has no legal existence and therefore does not amount to a benefit. 

The new determination sets out that a promise of a future payment can only be binding if, when the promise is made, the trustee exercises a power that the trust deed permits to be used at that time in relation to the relevant income or capital of the fund. 

Provision of benefits under section 22(3) of the Guidelines 

Section 22(3) of the Guidelines provides an integrity provision which states that the trustee of an ancillary must ensure that the fund does not provide any benefit (except where permitted by section 23) directly or indirectly to a related entity. In this context, a related entity will be any of the following: 

In the context of section 22(3), benefit is not limited to financial gain, but encompasses things such as: 

It is further outlined that ancillary funds may provide benefits by omission. This may occur by failing or refusing to take actions, such as not requiring related entities to fulfill financial obligations for example. 

The phrase ‘directly or indirectly’ broadens the meaning of how benefits may be provided under subsection 22(3). It captures not only the ancillary fund’s direct actions but also any indirect arrangements or omissions that result in a benefit to a related entity, even if that entity is not directly involved in the transaction. The draft determination focuses on the overall effect of the fund’s conduct, ensuring that all contributing factors are considered. 

How SW can help 

SW can assist ancillary funds in ensuring that any benefits they wish to provide fall within the scope of the Guidelines as clarified in TD 2025/D3. We can review proposed distributions and related party arrangements to confirm they meet the ATO’s definition of a ‘benefit’ and do not trigger penalties under subsection 22(3). 

Taxpayers can still make comments on the draft guidelines until 30 January 2026.

For assistance in establishing or managing a Fund please contact our private client specialists, Heather Dyke or Matthew Oakey.  

Contributors

Blake Trad

Heather Dyke

The post ATO Draft Determination TD 2025/D3: New guidance on when ancillary funds ‘provide a benefit’  appeared first on SW Accountants & Advisors.

Over eight months, SW worked closely with the Blackwattle team and Hamilton Locke lawyers to provide a seamless and efficient establishment of the investment firm, ensuring that all aspects of the Group’s goals were addressed and that Blackwattle had a solid foundation to build upon. 

SW involvement was key in assisting Blackwattle’s implementation of their long term incentive plan which underpinned Blackwattle’s key strategy of striving to be ‘”the most aligned fund manager in the country”. SW also facilitated the establishment of a corporate structure appropriate to the long term success of the funds management business.  

Facilitating the Blackwattle difference 

One of the key areas of focus was providing expert tax advice in relation to the start-up employee share scheme (ESS) provisions. A significant strategy of the fund is the requirement that portfolio managers invest in the funds they are managing, so the employee long term incentive plans were a crucial aspect.  

“We invest alongside our investors and clients, with personal capital committed and corporate profits reinvested into our portfolios, there is no personal trading,” said Blackwattle Managing Director and CIO Michael Skinner. “Having significant ‘skin in the game’ means we are 100 per cent aligned to the common interest of our clients, which is uncommon in the Australian funds management industry,” he added. 

SW advised on and reviewed employment agreements, employee share option plan rules, independent director agreements, and shareholder agreements to ensure compliance and optimal outcomes for Blackwattle and its investors. 

Leveraging his extensive experience and expertise in the funds management industry, SW Director Simon Tucker led the advisory for Blackwattle, working with the SW team to bring valuable insights and strategic advice to Blackwattle. 

“We are thrilled to have been a part of Blackwattle Investment Partners’ journey from the very beginning,” Tucker said. “Our collaboration enabled us to provide tailored solutions and guidance, supporting the firm’s growth and ensuring a solid foundation for success. We are grateful for the trust placed in us and look forward to continuing our partnership.” 

The partnership between the companies was initiated by Blackwattle’s legal team Hamilton Locke, who recommended SW based on their excellent reputation in the funds management industry. The successful completion of this engagement further strengthens SW’s position as a trusted advisor in the financial sector. 

Blackwattle launched with capital backing for more than five years, distribution of four investment portfolios from day one, a five person board as well as third party governance with independent chair-headed ESG and Investment Councils.  

Key professionals from SW Accountants & Advisors included Justin Batticciotto, Tom Warrington and Dennis Low. 

For more information about SW Accountants & Advisors and their range of services, please visit sw.com.au or contact Amanda Lee.

About SW Accountants & Advisors: 

SW Accountants & Advisors is a leading financial advisory firm providing a comprehensive range of accounting and advisory services to clients across various industries. With a team of seasoned professionals and a client-centric approach, SW delivers tailored solutions and strategic advice to help businesses achieve their goals. 

Reach out to Simon Tucker or learn more about our startup advisory services here.

Media contact

Amanda Lee
Head of Business Development & Marketing

E alee@sw-au.com
P +61 3 8635 1853

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从2021年7月1日起，SIV合规基金的基金经理需要任命一名外部审计师，每年按照合规投资框架对基金进行审计，包括新兴公司部分和平衡投资部分。

基金经理和移民代理也将了解到，重大投资者类别和投资者类别签证的申请人必须按照合规投资框架进行资金投资。

根据《2015年移民（IMMI 15/100：合规投资）工具》的规定，内政部最近对相关要求做出了一些修改，其中包括对合规资产的修改，以及对合规投资框架中的新兴公司部分和平衡投资部分进行年度合规审计。

SIV申请人–您需要做什么？

所有在2021年7月1日之后获提名申请重大投资者签证或投资者签证的申请人都要在其签证申请中附上审计报告，以证明在截至2022年6月30日的一年中以及往后每一年，他们所投资的基金符合合规投资框架的规定。基金经理将提供这些文件。

在没有合规性审计报告的情况下，签证申请被批准的可能性非常小。

SIV基金经理和移民代理——您需要了解什么？

信永中和澳大利亚如何帮助您

在我们与整个行业的基金经理广泛合作的基础上，信永中和澳大利亚的专业审计团队完全了解签证申请人、移民代理和基金经理的适用审计要求，并拥有丰富的相关审计工作经验。

我们的SIV基金审计服务为SIV合规基金提供高效率且有实效的审计，以确保这些基金符合《2015年移民（IMMI 15/100：合规投资）工具》所规定的新兴公司和平衡投资部分。

请联系本事务所的SIV审计专家穆芮内和艾汝谧咨询。

基金管理领域的税务专家包括：

池澜滨、谭赛蒙、欧斯迪

The post 重大投资者签证基金 – 合规审计 appeared first on SW Accountants & Advisors.

From 1 July 2021, fund managers of SIV compliant funds are required to appoint an external auditor to annually audit the fund with the Complying Investments Framework for the emerging companies’ component and the balancing investments component.

As fund managers and migration agents will know, visa applicants for the significant investor stream and the investor stream visas are required to invest their funds in accordance with the Complying Investments Framework.

The department of Home Affairs recently made several changes to the requirements, as stipulated in the Migration (IMMI 15/100: Complying Investments) Instrument 2015. These included changes to complying assets and for the emerging companies component and the balancing investments component of the complying investments framework to be audited annually for compliance.

SIV applicants – what do you need to do?

All applicants who were nominated to apply for a Significant Investor Visa or an Investor Visa after 1 July 2021 will be required to attach audit reports to their visa application to show that for the year ended 30 June 2022 and annually thereafter, the fund/(s) they have invested in comply with the complying investments framework. These will be obtained from their fund managers.

It is highly unlikely that a visa application will be approved without the compliance audit report.

SIV fund manager & migration agents – what do you need to know?

How SW can help

Building on our extensive work with fund managers across the sector, the SW specialist audit team fully understands the audit requirements as applicable to visa applicants, migration agents and fund managers, and has significant experience with these audits.

Our SIV fund audit service provides efficient and effective audits for SIV compliant funds to ensure these comply with the emerging companies and balancing investments components as required by the Migration (IMMI 15/100: Complying Investments) Instrument 2015.

Reach out to our SIV Audit experts, Rene Muller and Rami Eltchelebi, to start the conversation.

Fund management tax experts include:

Abi Chellapen, Simon Tucker, Stephen O’Flynn

The post Significant Investor Visa Funds – compliance audit appeared first on SW Accountants & Advisors.

Our team has worked with many of Australia’s financial institutions and have a deep understanding of funds management, banking, insurance and financial services generally. 

Our reputation has grown alongside our expertise into most parts of the financial services sector across all service lines of our business:

• funds – including ethical investing
• superannuation
• banks – including digital & neos
• insurers
• private equity
• stockbrokers
• financial planners
• custodians
• responsible entities.

The pace of regulatory change in financial services is unprecedented, with the ever increasing involvement of regulators globally. Financial services institutions need constantly to review and revise their practices and procedures to meet the challenges of this evolving landscape.  

We value the relationships we have built with many financial services institutions. We believe the success of these relationships is determined not just by the quality of our services, but also our awareness of the unique aspects of the financial services sector and our approach that is tailored to your organisation because we know that one size does not fit all. 

This is an industry we know well and regularly offer technical training to our clients’ financial teams. 

Emerging Property Funds series

Supporting tomorrow’s property fund leaders, the EPFS has been running for over 6 years and is highly considered across the industry.

The program is a five-part series of interactive sessions for aspiring leaders in property funds management.

Each session features guest industry leaders and specialists as we take attendees through the entire property fund lifecycle, best practice and pitfalls.

Stay tuned for our upcoming sessions in 2025 and 2026!

Industry Associations & Memberships

The post Financial services appeared first on SW Accountants & Advisors.

This event is an exclusive briefing for investors. Experienced investment managers will provide you with the latest insights and opportunities regarding the current investment landscape.

Each event in the State of the Market series hosts a changing panel of investment managers to explain trends in specific asset classes, such as:

• Listed and unlisted property funds
• Debt funds
• Equity funds
• Alternate / Infrastructure funds

The upcoming briefing will cover equity funds, along with insights into fund managers’ particular focus, and their experience on the market that they operate.

Expert Panellists​

Moderated by Simon Tucker, Partner, ShineWing Australia, we are excited to bring to you expert panellists:

• David Steinthal – Chief Investment Officer, L1 Capital International
• Jason Teh – Chief Investment Officer, Vertium Asset Management (A Copia investment partner)
• Shawn Burns – Senior Portfolio Manager, Contango Asset Management Limited

Benefits of attending

• Understand the diverse nature of investment markets
• Consider the impact of market volatility and what actions to take
• Learn from real life case studies
• Hear perspectives from subject matter experts
• Understand expert views on the current investment cycle
• Discover financial product trends
• Gain an understanding of the opportunity and risk in various asset classes

Event details

For more information about these events, or if you have any queries, please contact the ShineWing Australia Marketing team via marketing@sw-au.com.

We look forward to your attendance!

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