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Charitable Status
Advantages
Charity legislation
Applying for charitable status
Legal obligations
Consents and notifications
Satisfying the charity test
Rolling Review
Cross Border Monitoring
Trustee Indemnity Insurance
Further Assistance

Advantages

The principal advantages to charitable status are the financial benefits, including eligibility to:
Charitable status brings exemption from paying interest on bank deposits, rent from property, or income from investments and tax on capital gains, provided the gain is used for a charitable purpose. Charitable status gives credibility, encouraging donations and voluntary activity.  However, there are restrictions on how money is spent, i.e. a charity can only spend its money on furthering its charitable objectives or as a sound investment involving a proper commercial return and proper security. Money spent or costs incurred which are neither of the above are liable to tax assessment. 
An individual person cannot set themselves up as a charity.  It is a criminal offence for anyone convicted of an offence involving dishonesty, or who is subject to a company disqualification order or who is an undischarged bankrupt to be involved in the management or control of a charity.
Charitable status brings with it a number of legal obligations and responsibilities. As a charity your group will have to report to the Office of the Scottish Charities Register (OSCR) , file an Annual Return, Accounts (in the required format) and an Annual Report. There is also an obligation to ensure that the public can obtain reliable information about their activities (such as a copy of your constitution or latest accounts). 
If your group is small - with an income of less than £100,000 and you are not a company ltd by guarantee- then you need to weigh up the advantages against the added administration and responsibilities of being a charity.  
Visit VolResource for useful publications on running a community group or charity.
For current rates of VAT on different goods and services for charities click here
 BACK TO TOP Charities Legislation
The Charities and Trustee Investment (Scotland) Act 2005 governs how Scotland’s charities are regulated and run, placing new responsibilities on charity trustees and establishing a new legal definition of ‘charity’. The aim of the new legislation is to reinforce public confidence in the charity sector and create a more appropriate, modern environment for the operation of charities in Scotland.
  
All Scottish charities must register with OSCR, the Office of the Scottish Charity Regulator (OSCR), which has powers to monitor and regulate Scottish charities.
A comprehensive Scottish Charity Register, kept and maintained by OSCR, lists Scotland’s 20,000+ charities including name, principal address, charitable purposes, and annual income.  This will also state whether any Notices or Directions have been given to a charity by OSCR. It is an offence for an organisation to ‘hold itself out to be a charity’ if it is not entered in the Scottish Charity Register.
There are 16 charitable purposes defined in The Charities and Trustee Investment (Scotland) Act 2005, including  ‘the advancement of health’; and ‘the advancement of human rights’.
Applying for Charitable Status

OSCR apply a two-part Charity Test to all new applications for charitable status.  The Charity Test will over time be applied to all existing charities currently on the Scottish Charity Register (‘Rolling Review’). To meet the Charity Test, a prospective charity must have one or more charitable purposes; and must provide public benefit. There is an application form on the OSCR website.  
Legal Obligations

All charities on the Register must submit an Annual Return Form to OSCR - this is part of their legal obligation to make sure that the information held on the Scottish Charity Register is up to date. 
All charities also have to submit their Annual Accounts to OSCR in the required format. For small charities (unincorporated associations) with an income of less than £100,000 this will be Receipts & Payments accounts which they must have checked by an Independent Examiner. Having your accounts independantly examined is NOT the same as requiring a full audit. 
OSCR has published guidance on Independent Examination, one of the two possible ways of undertaking external scrutiny of accounts, which is particularly appropriate for smaller charities. The guide aims to explain how to understand what form of external scrutiny is applicable to different charities, what independent examination involves and what responsibilities and duties are attached to the role of the independent examiner.  Download their guidance booklet.
An Audit must be done by a registered auditor and can be a costly process.  If you are a small charity (income less than £500,000) and not a company ltd, you are not required to audit your accounts unless your governing document i.e. your constitution, or an enactment requires you to do so.  If your constitution uses the word 'audit' then it may be worthwhile considering getting this changed. OSCR suggests using the term 'externally scrutinised' as this will then cover your charity in the future if your income increases to over £500,000) 
The deadline for submitting to OSCR the Annual Return form and accounts is nine months from the financial year end of the charity.
Receipts and Payments Accounting Pack for charities with a gross income under £100,000 (and not companies) - includes templates and guidance plus CD Rom (Word & Excel proforma documents that run on Windows XP or 2000).  The use of the pack is not mandatory but small charities will find it useful.  It is not suitable for charities whose constitutions require them to submit accrued accounts.  The pack can be downloaded from the OSCR website or copies are available from you local CVS.
Charities References in Documents: All charities on the Scottish Register must clearly state the following on all business letters, emails, adverts, invoices, bills, receipts, statement of Accounts, contracts etc (for full list visit the OSCR website):
If your charity's registered name doesn't contain the word 'charity'  or 'charitable' then you must also state the fact that it is a charity by using one of the following terms:
For information on Charity trustee duties and legal responsibilities go to the Committee Roles Section.
  BACK TO TOP
Consents and Notification
You MUST seek OSCR’s CONSENT at least 42 days before:
Download a Consent Application form from the OSCR website
You MUST NOTIFY OSCR no later than 3 months after the change has taken place:-
Download a Notification Form from the OSCR website
OSCR will monitor charities on an ongoing basis and has powers to intervene or conduct investigations in response to public complaints about alleged misconduct or mismanagement.
Source: Office of the Scottish Charity Regulator updated March 2008
OSCR has an ‘all-in-one’ process that allows a charity that changes its legal form to retain its current charity number and name, if it so wishes. OSCR has produced guidance to outline the new process. 
For detailed guidance on Scottish Charity Accounts, including how to prepare a statement of accounts for OSCR, external scrutiny by an independent examiner and how to prepare a Trustees' Annual Report, see Money Matters
BACK TO TOP  Satisfying the Charity Test
Before you decide whether to apply for charitable status, you should give careful consideration to some preliminary issues:
1.  Are the core objectives of the organisation ones which are likely to be regarded as charitable?
The first part of the Charity Test refers to specific charitable purposes set out in the Charities and Trustee Investment (Scotland) Act 2005 Act , which are as follows:
There is, however, a further criterion to cover other possibilities that are not specifically referred to i.e. “any other purpose that may reasonably be regarded as analogous to any of the preceding purposes”. That means that even if the aims of your organisation do not fall neatly within any of the 15 specific aims, it might be possible to persuade OSCR to accept them as charitable if they are “analogous”.
NB. In order for a body to be registered as a charity, it must, in terms of the 2005 Act and the tax legislation, be established for charitable purposes only. That is to say, if an organisation pursues one or more non-charitable aims as well as some charitable aims, it cannot be registered as a charity. A situation of that kind could be addressed by splitting the activities between two separate legal entities. One possibility would be a charitable holding company, with a non-charitable subsidiary, so that there is still a clear linkage between the two bodies.
2. Is it clear that the public benefit test will be met in relation to the organisation’s activities?
The second part of the Charity Test which OSCR will apply, is referred to as the public benefit test. This test focuses on the actual activities which the organisation will be carrying out i.e. the question is whether or not the actual activities will satisfy the public benefit test:
A further dimension to the public benefit test relates to the question of whether any condition on obtaining a benefit from the organisation is “unduly restrictive” – including consideration of any charge or fee that is proposed, although it should be noted that the principle of charging a fee for services is not in itself a problem, only if the fee is so high it prevents access to the charitable benefit for the majority of potential or intended beneficiaries. The reference to “unduly restrictive” conditions allows OSCR to take account of any other barriers e.g. gender, religion or race. Again, OSCR makes it clear that a restriction on obtaining benefit based on gender, ethnicity or religion will not necessarily be a problem, providing it is reasonable by reference to the nature of the organisation’s purposes.
The question of whether the public benefit test is satisfied will be determined by OSCR primarily on the basis of the statement of activities which requires to be given (through the application form) at the time when an organisation is applying for registration as a Scottish charity, supplemented by any accounts, business plan, grant application or other documents lodged with the application.
3.  Will the restrictions on employees serving on the board / management committee cause difficulties in the context of your organisation?
4.  Will the prohibition on payment of dividends to members (and, similarly, the paying-out to members of any surplus on a winding up) be acceptable in the context of your organisation?
 5.  Is the organisation likely to become involved in trading activities which fall outwith the charities tax exemption?
If in doubt about any of these conditions, see the OSCR guidance booklet, Meeting the Charity Test, which includes detailed examples. The booklet is available at www.oscr.org.uk   
BACK TO TOP Rolling Review of Scottish Charities
The Rolling Review is the process by which OSCR will assess all Scottish charities to check that they meet, and continue to meet, the charity test. So far the Rolling Review process has already produced three key lessons for all charities to consider prior to assessment:-
OSCR have completed pilot case studies on 16 Scottish charities who volunteered to be assessed under the Charity Test as part of the initial stages of the Rolling Review.  Any group seeking charitable status has been assessed using the Charity Test, but this is the first time it has been applied to charities already on the Scottish Charity Register who were granted charitable status prior to the Charities and Trustees Investment (Scotland) Act 2005 and the establishment of the regulatory body OSCR.
These findings helped OSCR to develop its framework for the Rolling Review assessment of 23,500 Scottish charities.
Cross Border Monitoring

In June 2009 OSCR implemented new cross border monitoring.  Implementation will affect, firstly, charities with a 31 March year end.  The new monitoring regime is outlined in their consultation document available to download here.

For more information visit the OSCR website Guidance Leaflets
The Office of the Scottish Charity Regulator has produced a range of leaflets for Charities.  For leaflets that give guidance on making changes to your charity click here, for advice on becoming a Charity in Scotland click here  
 
BACK TO TOP 
 
Trustee Indemnity Insurance
Up to now, some charities have taken out Trustee Indemnity Insurance as an option within a package of insurance cover. This offers protection to all members of a board of Trustees from damages and legal expenses for which they are legally liable as a result of a 'wrongful act' or any breach of trust or breach of duty. The policy parallels insurance cover offered within the private sector. 
More information can be seen in Section 67 of the Charities and Trustee Investment (Scotland) Act 2005 which deals with 'Remuneration For Services' for Charity Trustees. Section 68 defines remuneration as including 'benefit in kind' which can include both direct and indirect benefit.  OSCR's interpretation of the section is that 'indemnity insurance paid by the charity in respect of trustees falls within the definition of remuneration under the Act.' and accordingly be subject to the same conditions and restrictions as any other type of remuneration.  
Operating under different legislation in England and Wales, the Charity Commission considers trustee indemnity insurance to be a personal benefit to the charity trustees and it has the statutory power to consent to the taking out of trustee indemnity insurance.  
From a governance perspective, OSCR wishes to ensure that all charity trustees are aware of their responsibilities, including the duty to act in the interests of the charity.  If your group or organisation already has Trustee Indemnity Insurance in place (or has the power to put such insurance in place) any application to OSCR to register for charitable status will not be turned down because of this.  OSCR will offer comment in relation to an application, but no applications will be rejected on these grounds. This includes applications from cross-border organisations.
Other Toolkit Sections to look at

Your Constitution
Management Structures
Advantages of Charitable Status
Legal Responsiblities of being a charity
Benevolent Fundraising

 BACK TO TOP
Download files
Visit our file library to view a range of downloadable files including Sample Constitutions, Policies and Guidance Notes  CLICK HERE









Tips

Contact a local group about how they applied for charitable status
Sluggans Woodland Park
Staffin Community Trust




More info

Contact S&LCVO in Portree for further help
Phone 01478 612921
Email info@slcvo.org.uk