The Charity Commission of England and Wales has put out a statement on a major scheme involving UK Gift Aid. From a Canadian perspective it is interesting to see the Charity Commission dealing with this sort of abuse. In Canada, we have had “abusive charity gifting tax schemes” that over the last decade have issued over $6 billion in tax receipts and according to CRA less than 1% of that amount was spent on charitable activities. Another interesting point from a Canadian perspective is that unlike what the Charity Commission has done in releasing a statement, CRA cannot make a statement about an existing registered charity. Under s. 241 of our Income Tax Act (Canada), the Charities Directorate of CRA is prohibited from commenting on a perceived massive abuse of the system by a registered charity until after such charity has lost its registered status (which could take 5-10 years in some cases). So if CRA sees a major scheme, such as this and if they have concerns they are not allowed to say anything to the public (to protect the reputation of the sector or to protect individual taxpayers from involvement.) I have made a number of presentations to the Finance Committee were I have encouraged them to change s.241 to allow for CRA to comment on serious abuses by a registered charity.
Here is a copy of one of my submissions to the Finance Committee:
The Cup Trust
Charity Commission statement
(Immediate Release - 31 January 2013)
The Commission understands that the Times and Daily Mirror articles about the Cup Trust have caused serious concern, not just among members of the public who give so generously to charities, but also among the many thousands of charities that demonstrate high standards of probity, ethics and governance and do so much to support vulnerable people in society.
We are not comfortable with the charity’s set up. We recognise that for a charitable structure to be used in this way damages public trust and confidence in the sector and serves to undermine the excellent work of charities. As regulator, we have a responsibility to uphold trust and confidence in charities.
It was precisely because we had serious concerns about the charity’s structure and activity that we investigated the Cup Trust. We opened an investigation into the charity in March 2010 following concerns raised about its governance, its activities and how its funds were raised and applied.
We seriously considered whether or not it was a charity and whether it should be removed from the register. But whatever the motives for creating the Cup Trust, we were forced to conclude that we could not remove it, as the Cup Trust is legally structured as a charity. This view was confirmed by independent legal advice. For that reason, despite our concerns, we closed our investigation in March 2012, with regulatory advice and guidance, knowing that we might intervene again.
We cannot take action against a charity unless we are able to demonstrate that its trustees have breached their legal duties. Nor can we take action against a charity simply on the basis that it spends a relatively small proportion of its income on charitable activities in any given year. It is acceptable under charity law to invest in a fundraising scheme and to plan expenditure over a number of years. It is for trustees to decide how to apply their charities’ funds. Most trustees make these decisions well and in the best interests of their beneficiaries.
It is important to stress that the Cup Trust is a highly unusual structure and operation. It is also important to note that it remains to be seen whether the charity’s gift aid claims will prove successful. Decisions about awarding tax relief to charities are for HMRC. We have no remit over tax issues, and cannot comment on HMRC’s activities or decisions.
We would like to reassure charities and the public that we take the deliberate abuse of charity extremely seriously and would encourage anyone who has any evidence of abuse, concerning this or any other charity, to share that evidence with us.
For further information please contact the Press Office.
Notes to Editors
1. The Charity Commission is the independent regulator of charities in England and Wales. See http://www.charitycommission.gov.uk for further information.
2. Our mission is to be the independent registrar and regulator of charities in England and Wales, acting in the public’s interest, to ensure that:
charities know what they have to do
the public know what charities do
charities are held to account
Do you require legal advice with respect to Canadian or Ontario non-profits or charities?
Mark Blumberg is a partner at the law firm of Blumberg Segal LLP in Toronto and works almost exclusively in the areas of non-profit and charity law.