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27 Jun 11 TV series entitled to producer offset certificate as “documentary” – EME Productions

The Administrative Appeals Tribunal has held that a series of television programs entitled “Lush House” was a documentary and the production company was therefore entitled to producer offsets under s 376-65 ITAA 1997. The tax offset is available to a film when Screen Australia gives a positive certificate. The certificate will be given only when a film meets each of a number of conditions set out in s 376-65.

Each episode of the series followed the efforts of a different family or household to improve household management and reduce stress through implementing advice given by a “domestic guru”.

The Tribunal noted that the word “documentary” is not defined in the ITAA 1997. The only assistance that can be gained as to its meaning from related publications is from the Explanatory Memorandum to the amending Act adding Division 376, and from related Screen Australia and industry guidelines. It was accepted that “documentary” is used in the Act with its ordinary meaning, and not with any technical or special meaning.

The Tribunal found that the program possessed many of the necessary components of a documentary. It recorded real events in real households. The extent to which these events were influenced by the producers of the film was not sufficient to displace that conclusion. Indeed, it enhanced the creative aspects of the program. Nor was the conclusion qualified by the fact that the program contained advice. This further enhanced the creative aspect, as well as the informative or educational aspect, of the program. That a program which is nothing but advice might warrant the label “how to program” and not be a documentary, was irrelevant.

The Tribunal found that the industry guidelines did not add anything of substance. It would be wrong to treat guidelines adopted some years ago for a different purpose, in an industry subject to constant change, as akin to a statutory definition.

Re EME Productions No 1 Pty Ltd and Screen Australia [2011] AATA 439 (Administrative Appeals Tribunal, Downes J, President, Senior Member A K Britton, 24 June 2011).