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Angel Loop Ltd and Commissioner of Australian Charities and Not-for-profits Commission [2021] AATA 3894

Brief summary of the facts

  1. Angel Loop Ltd (the applicant) applied to the ACNC to be registered as a charity.
  2. We refused the application on the basis that the applicant had an independent, non-charitable purpose of facilitating private business relationships for the primary benefit of entrepreneurs and angel investors.
  3. The applicant argued that it promoted a culture of innovation and entrepreneurship in Australia by connecting angel investors with entrepreneurs.
  4. The applicant screens and selects inventors and takes them on ‘roadshows’ to attend angel group meetings throughout Queensland.
  5. Angel groups are groups of local business people. At angel group meetings, entrepreneurs pitch business ideas and seek funding and mentoring from investors. The meetings also involve education sessions with entrepreneurs and investors. The intention is to raise enough funds to commercialise the business idea.

Issues decided

  1. The Tribunal upheld the ACNC’s decision that the applicant was not entitled to registration as a charity under s 25-5(5) of the Australian Charities and Not-for-Profits Commission Act 2012 (the ACNC Act).
  2. In its decision, at paragraph 25, the Tribunal distinguished between the applicant and the case of Commissioner of Taxation v Triton Foundation (2005) FCR 1319 (Triton). In Triton, the Federal Court had accepted that the promotion of a culture of innovation and entrepreneurship is capable of being a charitable purpose as an aspect of the promotion of industry or commerce.
  3. The Tribunal stated that in Triton, “all of the help was given to the inventor.” In contrast, in this case “help is not only given to the inventor” (paragraph 25). The Tribunal highlighted the applicant’s significant work beyond helping the inventor.
  4. The Tribunal, at paragraph 26, stated that:

There is no doubt that if the main purpose of a body is charitable, it does not lose its charitable character simply because some of its incidental or concomitant and ancillary objects are noncharitable.

  1. The Tribunal determined that the applicant’s purpose was to bring about a commercial deal between the investor and inventor (paragraph 28).
  2. The Tribunal then, at paragraph 28, concluded that the applicant’s purpose was not incidental or ancillary to a charitable purpose:

While it is true that the activities of the Applicant in this matter would be likely to increase entrepreneurial business activity in a positive way and provide encouragement for innovation and entrepreneurship, the evidence does not show that that is the sole or predominant purpose of the Applicant. The Applicant goes further than encouragement. Part of its essential activities is obviously to bring about an arrangement between an inventor and an entrepreneur(s). Its core function is not simply to educate and encourage or assist. A core function is to bring about a commercial deal between investor and inventor. That cannot be said to be ancillary to the charitable purpose. It is a purpose, if not the main purpose, of the Applicant. It is a noncharitable purpose even though it is doubtless a worthy purpose.

Our view of the decision

  1. We consider the Tribunal’s summary of a purpose being incidental or ancillary to, and in furtherance or in aid of, charitable purposes to be useful (paragraph 29):

An ancillary purpose has been described as one which is not “of substance in its own right”, “only lawfully to be pursued as conducive to promoting,” the main purpose and is merely a means of achieving the main purpose or is otherwise an “unsought consequence” of the pursuit of the main purpose, as was pointed out in the decision to refuse to register.

  1. We will continue to use these principles when assessing applications for charity registration and in assessing a charity’s ongoing entitlement to registration, including compliance with the Governance Standards.
  2. We consider organisations that focus their efforts on helping inventors, as in Triton, are more likely to have a charitable purpose of promoting a culture of innovation and entrepreneurship. However, there are other considerations that are relevant in determining whether an organisation has a charitable purpose of promoting a culture of innovation and entrepreneurship as set out in Triton and in other common law decisions.

Impact on guidance

  1. None.