Setting up a non-profit organization (NPO) in Ireland
Setting up a non-profit organization (NPO) in Ireland. Ireland recognizes many different types of not-for-profit organizations (NPOs). All charities must be included in the Register of Charities maintained by the Charities Regulator. Registration with the Charity Regulator is an online process. Registration fee is 100 euro. During registration will be asked to provide certain key information, include your organisation’s Constitution, and a declaration of eligibility to be registered as a charity. The Charities Regulator will then assess your application for eligibility and will contact you if you if they have any queries. This process may take some time. While in the process of registering with the Charities Regulator, organisations cannot carry out any fundraising or charitable activities. They can continue, however, to put in place their organisational structures. The charity must:
· Operates in the Republic of Ireland
· Exists for a charitable purpose(s)
· Exists to benefit the public or a section of the public in Ireland, or elsewhere, through its charitable purpose(s)
· Is not an excluded body
A charitable organisation that operates in Ireland must apply to be registered. This does not mean that the people (or section of the public) that your organisation will benefit need to be in Ireland. For example, an organisation can operate in Ireland with the main purpose of advancing education, by building schools in a number of communities in a specific region of Africa, to benefit the children and future generations of those communities. If the annual income of an organisation is in excess of EUR 100,000, the accounts must be audited. Where the gross income or expenditure of a charitable organisation in a financial year does not exceed 100.000 euro, the charity trustees may, instead of preparing an annual statement of accounts in respect of that year, prepare an income and expenditure account in respect of, and a statement of the assets and liabilities of, the charitable organisation.
An organisation’s purpose(s) must benefit the public or a section of the public in Ireland or elsewhere. The benefit your organisation’s purpose(s) provides should be identifiable. An organisation that benefits only one person cannot be legally regarded as a charity. However, the beneficiaries may be limited to a class of people, as long as the organisation does not put restrictions within that class or, if it does, that any such restrictions are reasonable and justified. Your organisation’s ‘purpose’ is what it is set up to achieve. The Charities Act 2009 sets out specific categories of charitable purposes:
1. The prevention or relief of poverty or economic hardship
2. The advancement of education
3. The advancement of religion
4. Any other purpose that is of benefit to the community.
4.1. the advancement of community development
4.2. the promotion of civic responsibility or voluntary work;
4.3. the promotion of health, including the prevention or relief of sickness, disease or human suffering;
4.4. the protection of the natural environment;
4.5. the advancement of the arts, heritage or sciences; and
4.6. the integration of those who are disadvantaged, and the promotion of their full participation, in society.»
Cannot become charities: bodies that promote activities that are unlawful, contrary to public morality, contrary to public policy or in support of terrorism or terrorist activity; trade unions; political parties or bodies that promote a political party, cause or candidate.
1.Unincorporated associations. Unincorporated associations are popular in part because they are relatively easy to form. An unincorporated association is a membership-based organization. The association does not ordinarily have legal personality and thus cannot enter into legal relations in its own right. Members are jointly and severally liable for the association’s debts.
Often groups will start off as unincorporated associations and then, if they become bigger and undertake more activities, such as employing staff, they may decide to incorporate. With growing complexity and more prominent risks the members of the group need protection, so they are not individually liable for the activities of the organisation.
Many charitable organisations are constituted as unincorporated associations and are usually governed by a set of rules in the form of a Constitution. Such organisations are like clubs, consisting of people bound together by mutual agreement, who meet on a regular basis to pursue a common interest. Many smaller unincorporated associations do not have a Constitution or written rules, however if the organisation is a charity the Charities Regulator will require it to have a written Constitution. The Charities Regulator requires the following to be set out in a written agreement:
• The name of the association (Is the same or very similar to an existing charity? Could mislead people regarding its purpose(s) or activities? Could lead people to incorrectly believe it is connected to another body? Might cause offence to a reasonable person?)
• Its aims and objectives which must fall under one of the primary charitable purposes
• Details of the people on its overall governing body (e.g. Board, Management Committee)
• The role, function and contractual arrangement of the Trustees – the Charity Regulator requires there to be a minimum of 3 unrelated Trustees
• The appointment, terms of office, powers and duties of the Trustees
• Specific income and property clauses
Trustees/Board/Management Committee The trustees and its members are bound by the objects of the charity and they are under a duty not to do anything that is outside the scope of the objects of the charity.
Advantages: The biggest advantage is that it is easy and inexpensive to set up; It also has considerable discretion in the manner of its operation and administration and therefore appeals to small voluntary groups
Disadvantage: The biggest disadvantage is that the members are not entitled to limited liability, making them personally liable for their actions including financial failures of the charitable organisation
2.Trust. In a trust, one or more persons operating under the authority of a “deed of trust” hold funds or property on behalf of other persons. Like an unincorporated association, a trust ordinarily has no legal personality; the trustees themselves must enter into legal relations and accept personal liability. The trustees of this form have unlimited liability. Under Section 2 of the Charities Act 1973, however, a qualifying trust may become a body corporate. To seek such a conversion, the trustees apply to the Charities Regulatory Authority (CRA). A body corporate established in this manner has a common seal and power to do any act or thing (including hold land) necessary to administer the trust as a charity. Moreover, the charity may sue or be sued in its corporate name
Governing document is called a ‘Trust Deed’ and it sets out the key matters of the Trust such as:
• The appointment, power and removal of trustees
• The objectives of the trust
While its main advantages are the relative speed, simplicity and lack of cost involved, main disadvantages are these: trustees have no limited liability and can be sued in their personal capacity for breach of trust and can be held personally liable for third party debts, there are far greater restrictions placed on the trustees of a trust than on directors of a company, the alteration or change of trustees is complex.
3.A company limited guarantee. (CLG). A company limited by guarantee (CLG) is an alternative type of corporation, used primarily for non-profit organizations that require legal personality. It does not have share capital; its members are guarantors instead of shareholders. A CLG cannot distribute profits to its members, and it is eligible to apply for charitable tax exemption. The governing instruments of a CLG consist of its memorandum and its articles of association. The Charities Regulatory Authority and the Revenue Commissioners requires that there be at least 3 unrelated directors if the company is a charity. It may be appropriate to establish a company where some or all of the following apply:
• It will employ staff;
• It will deliver charitable services under contractual agreements;
• It will regularly enter into contracts; and
• It will be an owner of property.
The Articles of Association are the regulations by which a company can be governed and managed and set out the internal management of the company and the particular areas covered will include:
• Members of the company
• Annual general meeting and extraordinary general meetings
• Board of directors’ appointment, removal of same, specific roles: Chair etc.
• Meeting of the directors
• Minutes of meetings
• Company seal
• Accounts and audits
The main advantages are: Limits the liability of members; Allows the company to enter into contracts in the company name. In contrary, the main disadvantage is that incorporation has costs associated with forming and maintaining the company – including compliance with company law.
There is a second type of guarantee company, a Designated Activity Company (limited by guarantee) that has a share capital, but it is a rarity. Members are obliged to take shares, as well as to give a guarantee. There is a limit of 149 on the number of members. Although this is a second form of company limited by guarantee, in practice, any company carrying out charitable activity or applying for a charitable tax exemption will be required to be a Company Limited by Guarantee.
Tax exemption. The Charities Regulator and the Revenue Commissioners are two distinct bodies. Charities must apply for registration to first one and tax exemption to second one. Not registering with the CRA or carrying out activities in the name of an unregistered charity is an offence.
After holding a CHY number for 2 years, an entity may apply for “donations relief” which allows the entity to claim tax relief on certain donations from individuals over EUR 250 per annum. If a company donates a sum greater than EUR 250 in any year to a charity holding donations relief, it may claim a deduction for the donations as if it were an expense. There is a four-year time limit for making a claim under this scheme. In addition, an applicant for tax exemption must satisfy the following conditions:
• It is legally established in Ireland;
• Its center of management and control is in Ireland;
• The majority of its directors are Irish residents;
• It has a permanent establishment and some operations within Ireland;
• Its objects and powers are so framed that every object to which its income or property can be applied is charitable; and
• Its main objects and the application of its income or property are bound by a governing instrument, such as a memorandum and articles of association, a deed of trust, or a constitution.
If a charity is not established in Ireland but is established in an EEA or European Free Trade Association (EFTA) state, it can now seek a determination from the Revenue Commissioners to the effect that, if the body were to have income in Ireland of a kind referred to in Section 207 or 208 of the Taxes Consolidation Act 1997, it would qualify for the exemptions provided by those sections.
References.
1. Charities Act 2009 [1] 2. Companies Act 2014 [2] 3. Finance Act 2010 4. The Taxes Consolidation Act 1997 (as amended) 5. Website of the Revenue Commissioner: https://www.revenue.ie/en/Home.aspx 6. Website of the Charity Regulator: https://www.charitiesregulator.ie/en 7. Website: https://www.wheel.ie