Insights

Charities Act 2009

Following publication of the Charities Bill in 2007 and extensive debate on the matter the Charities Act (“the Act”) was signed into law at the beginning of March .  The Act introduces a number of significant changes to the law surrounding the regulation of charities and introduces a number of charity offences.  Many of the amendments proposed will directly impact upon the duties of charities operating in Ireland.

The key features of the Act are as follows:

  • The Act introduces a statutory definition of charitable purpose.  The categories of charitable purpose are:
    • Prevention or relief of poverty or economic hardship
    • The advancement of education
    • The advancement of religion
    • Any other purpose that is of benefit to the community, an exhaustive list of those purposes is set out in the Act
  • The definition proposed mirrors requirements of the Revenue Commissioners for charitable tax status designation.
  • A Charities Regulatory Authority (or Charities Regulator) (“the Authority”) shall be set up to promote compliance and management of charities.  The Authority shall upon commencement of the relevant section of the Act and after consultation with the Revenue Commissioners cause to be established a register of charitable organisations.  The cost of maintaining the register may be defrayed by charging a fee to each charitable organisation. 
  • Any charity that intends to operate or carry on activities in the state shall apply to the Authority to be registered on the register.  It is the responsibility of the charity trustees of the charitable organisation to make application on behalf of the charitable organisation.  Charities that are presently designated with CHY status will be automatically included on the register of charities.
  • Any charitable organisation which does not hold CHY status and wishes to continue carrying on charitable activities must no later than 6 months after commencement of the Act or such longer period as the Minister may specify apply in writing to the Authority to be registered. The list of documents required when applying to the Authority is set out in the Act (section 39).  Note the Act is awaiting Ministerial commencement order.
  • The Authority may exempt an applicant from the requirements to produce ancillary documents where it is of the opinion that compliance with those requirements would be unduly onerous.
  • The name of a registered charitable organisation shall not be changed without the consent of the Authority.
  • There is an obligation on Charity Trustees to keep proper books of account and maintain those for a period of not less then six years.  Failure to do so is an offence. 
  • The Act introduces an annual reporting requirement under which charities must submit annual returns detailing the activities carried out by charities in the current year.  The Charity Trustees shall in respect of each of financial year prepare a statement of account and those accounts may be required to be audited, this shall be prescribed by the Minister and based on gross income or expenditure of the charitable organisation.
  • Small charities with an income or expenditure of less than €100,000.00 may prepare an income and expenditure account together with a statement of assets and liabilities. Failure to comply with these obligations is an offence. 
  • The Registrar of Companies shall after receiving the annual return of a company which has been registered as a charitable organisation give a copy of the annual return and copies of all documents to the Authority.
  • The accounting and auditing requirements under the Act do not apply to charitable organisations that are companies, educational bodies, charitable organisations whose gross income is less than €10,000.00 or such greater amount not exceeding €50,000.00.  The exemption does not in any way derogate from the responsibility of all charities to keep proper books of account.
  • The Charity Trustees of a charitable organisation shall submit to the Authority after the end of each financial year a report in respect of its activities in the previous financial year.  The particular requirements shall be introduced by further regulations.  It is likely however that the following documents shall be annexed:-
    • A copy of the annual statement of account or income and expenditure account.
    • Where the accounts have been audited, a copy of the Auditor’s Report.
    • Where the accounts have been examined by the independent person, a copy of the independent person’s report.  An independent person is someone approved by the Authority being a person who has requisite ability to carry out a competent examination of the accounts
  • The Act sets out a number of exclusions on parties who can act as Trustees. 
  • To carry on the activities of a charity in the state without being registered with the Authority is an offence as is falsely holding out a body as a charity.  Prosecutions may be brought and a summary prosecution is liable to a fine of up to €5,000.00 and/or 12 months imprisonment.  Indictable offences are punishable by a fine of up to €300,000.00 and/or ten years imprisonment.
  • Under the Act a Tribunal shall be established known as the Charity Appeals Tribunal.  The Tribunal shall act an appeals body from the Authority.  All appeals must be brought within 21 days from the date of the decision that is being appealed.  There is an onwards appeal from the Tribunal to the High Court on a point of law.
  • The Commissioners of Charitable Donations and Bequests in Ireland shall be dissolved.  Their functions shall vest in the Authority.
  • A charitable organisation may enter into agreement with persons for the provision of services to the charity in consideration of payment to the person out of the property of the charity.  Those agreements must be in writing and the sums to be paid shall not exceed what is reasonable and proportionate.  A relevant person is a Charity Trustee of the organisation or person with whom a Charity Trustee has a personal connection. 
  • New provisions have been introduced regarding non-cash collections in that a permit is required from the local Garda Chief Superintendent.  The Minister has power to make regulations relating to manner and conduct of fundraising by charitable organisations including collections and non-cash collections.  The current permit regime for cash collections has not been changed.

Implications of the Charity Act for Charities:

  • Introduction of the Act will mark a step towards a comprehensive regulatory system of charities in Ireland.
  • Although the Act was signed at the beginning of March it will only become operative by ministerial order.  None of its sections are automatically operative.  It is anticipated that the establishment of the charity authority will take at least two years. 

In anticipation of commencement of the Act it is important that all officers of charities and their advisors are aware of the provisions of the Act.  We shall keep you informed of further developments as they arise. For further information please contact Roisin Bennett on 661 9500 or at rbennett@reddycharlton.ie.

Disclaimer

This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by Reddy Charlton for any action taken in reliance on the information contained herein. Any and all information is subject to change.


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