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CHY1 - APPLYING FOR RELIEF FROM TAX ON THE INCOME AND PROPERTY OF ...

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CHY1 - APPLYING FOR RELIEF FROM TAX ON THE INCOME AND PROPERTY OF ...

    CHY 1

     April 2009

    APPLYING FOR RELIEF FROM TAX

    ON THE INCOME AND PROPERTY

    OF CHARITIES

1. INTRODUCTION

    This booklet has been produced in order to:

    * list the tax exemptions which are available for charities

    * explain what constitutes a „charity‟ for exemption purposes

    * describe how a charity may apply for tax exemption

    * provide guidance on completing the application form

    * set out the conditions attaching to exemption from tax.

2. WHAT RELIEFS FROM TAX ARE AVAILABLE ON THE INCOME AND

     PROPERTY OF CHARITIES?

The tax code provides exemptions for charities as follows:

* Income Tax - Sections 207 and 208, Taxes Consolidation Act, 1997

    * Corporation Tax (in the case of companies) - Sections 76 and 78 Taxes Consolidation Act, 1997

    * Capital Gains Tax - Section 609, Taxes Consolidation Act, 1997 * Deposit Interest Retention Tax (DIRT) - Section 266 Taxes Consolidation Act, 1997

    * Capital Acquisitions Tax Sections 17, 22 and 76 of the Capital Acquisitions Taxes Consolidation Act 2003

    * Stamp Duty - Section 82, Stamp Duties Consolidation Act, 1999 * Dividend Withholding Tax - Chapter 8A, Part 6, Taxes Consolidation Act, 1997

    Section 848A of the Taxes Consolidation Act, 1997 provides for a scheme of tax relief for certain “eligible charities” and other “approved bodies” in respect of donations received on or after 6th April, 2001. A charity may apply for authorisation as an “eligible charity” under the provisions of this scheme after it has been granted

    exemption from tax (i.e. assigned a CHY number) by the Revenue Commissioners for a period of not less than 2 years.

It should be noted that:

    (i) There is no general exemption in respect of Value Added Tax for organisations which are

     granted charitable tax exemption. ( Specific reliefs from VAT may

    however apply in certain

     circumstances e.g. humanitarian aid, medical equipment etc. - see leaflet CHY 10)

    and

    (ii) Employees of a charity are liable to income tax in the ordinary course under the PAYE

     system.

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3. WHAT BODIES ARE ELIGIBLE TO APPLY FOR CHARITABLE TAX

     EXEMPTION?

    The Revenue Commissioners are responsible for the administration of the relevant tax exemptions and for this purpose determine whether a body of persons or a trust claiming the benefit of any exemption is established for charitable purposes only. An applicant body who is refused exemption has a legal right to appeal such refusal to the Appeal Commissioners who are independent of the Revenue Commissioners.

    In the first instance, applications for exemption are examined having regard to whether the body concerned is engaged in an activity under either one or more of the following headings:-

    * Relief of Poverty

    * Advancement of Education

    * Advancement of Religion

    * Other works of a charitable nature beneficial to the community.

    (N.B. Not all

    purposes which may be beneficial to the community are charitable in law

    e.g. the promotion of sport and amateur games is not accepted as being

    legally charitable. However, approved athletic or amateur games or sports

    bodies may obtain exemption from Income Tax and Corporation Tax by

    contacting the Games and Sports Section and a separate leaflet is available

    in relation to „Sporting Bodies‟).

In addition, Revenue requires that the body:

    * must be legally established in the State and have its centre of management and control therein. There should be a minimum of three directors/officers/trustees the majority of whom must be resident within the State and the organisation must have a permanent establishment and some operations therein, and * must ensure that its objects and powers are so framed that every object to which its income or property can be applied is charitable, and

    * must be bound, as to its main object(s) and the application of its income or property, by a

     Governing Instrument, e.g. Memorandum and Articles of Association in the case of an

     incorporated body or Deed of Trust, Constitution or Rules in the case of an unincorporated body.

    A body which is granted charitable tax exemption will be issued a charity reference number e.g. CHY 1111 and this CHY number should be quoted in all future correspondence with Revenue.

4. APPLYING FOR EXEMPTION FROM TAX

a. Income Tax, Corporation Tax, Capital Gains Tax or DIRT

Where a charitable organisation wishes to apply for exemption, it must submit a

    completed application form. (An application form is included with this booklet).

    Paragraph 5 following contains detailed instructions on how to complete the

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    application form. In addition to the completed application form, the body must submit for examination a copy of its formal Governing Instrument. i.e. either Deed of Trust, Memorandum and Articles of Association or Constitution/Rules, as appropriate. For bodies who are not yet formally constituted a draft copy of the Governing Instrument should be submitted in the first instance as certain amendments and additions may be sought by Revenue.

    An outline of a Governing Instrument which shows the preferred layout and the clauses required is available on the Revenue website at http://www.revenue.ie or may be obtained by contacting Charities Section.

b. Stamp Duty

Exemption from stamp duty only arises where a transfer or lease has been made for

    charitable

    purposes in the State or Northern Ireland to a body of persons or a trust established for charitable

    purposes only. A claim for exemption from stamp duty cannot be considered in advance of the execution of the transfer or lease.

    To obtain exemption the relevant instrument should be lodged for adjudication with the Revenue Commissioners quoting the appropriate charity (CHY) number, where exemption has already been granted by the Charities Section. The location of the Solicitor representing the body liable for the payment of Stamp Duty determines which Revenue Office deals with the case. Galway Revenue Office at Hibernian House, Eyre Square, Galway deals with Galway, Donegal, Mayo, Sligo, Leitrim and Roscommon. Cork Revenue Office at Assumption Road, Blackpool, Cork deals with Cork, Kerry, Clare and Limerick and all other counties are dealt with at the Revenue Office at Dublin Castle.

c. Capital Acquisitions Tax

    A gift or an inheritance which is taken for a charitable purpose will be exempted from Capital Acquisitions Tax to the extent that Revenue are satisfied that it has been, or will be, applied to purposes which are charitable in law.

    To obtain exemption, details of the gift/inheritance for Dublin Applications should be sent to the Dublin Regional OfficeArus Brugha, 9/10 O'Connell St.,Dublin 1. For all other counties please contact the relevant Tax District for the charity in question

    quoting the appropriate charity (CHY) number where exemption has already been granted by Charities Section. If charitable exemption has not previously been obtained, the application form attached should first be completed and forwarded to Charities Section. When charitable exemption is granted the relevant charity (CHY) number should be quoted when making application for Capital Acquisitions Tax exemption.

d. Dividend Withholding Tax

A Charity which has been granted exemption under Section 207 of the Taxes

    Consolidation Act, 1997, may receive relevant distributions from companies resident in

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    Ireland without the deduction of Dividend Withholding Tax where that Charity is beneficially entitled to the relevant distributions and where a declaration of their entitlement to exemption has been made.

    A declaration of exemption may be made by completing the appropriate section of the Composite Resident Form and lodging it with the “relevant person”. A “relevant person” is defined as

    - a company resident in Ireland which makes a relevant distribution directly

    to the person beneficially entitled to the distribution;

    - a qualifying intermediary, where the relevant distribution has been made

    indirectly to the person beneficially entitled to the distribution via that

    qualifying intermediary;

    - in addition, where relevant distributions are made via an authorised

    withholding agent, that agent effectively steps into the shoes of the

    company and is the “relevant person” in relation to the distributions.

    The Composite Resident Form is available on the Revenue web-site at www.revenue.ie or directly from the DWT Section, Government Offices, Nenagh

    Telephone 067-63400

5. NOTES FOR GUIDANCE ON HOW TO COMPLETE THE APPLICATION

     FORM FOR CHARITABLE TAX EXEMPTION

    Please read these instructions carefully before you complete the application form attached. We have numbered each paragraph below to correspond with the

    number of each item on the application form. You must answer all the questions

    on the form and submit it, when completed, with the information and documentation requested. Omissions and errors can lead to delays in the processing of the application.

    The term “body” is used throughout these notes and is applicable to companies, trusts and unincorporated organisations.

    If you need any help in completing this form, please contact Charities Section, Government Offices, Nenagh Telephone: 067-63400 Locall 1890 666333.

    Part A - IDENTIFICATION

1. Name of the body applying for exemption - This refers to the legal name of the

    organisation, association, corporation, trust, etc. that is seeking exemption. The name entered on the form should be identical to the name of the body as it appears on its Governing Instrument (see Part B below). Exemption is normally only granted in this name.

2. Any other name e.g. a trade name - If the organisation operates under another

    name, please attach a statement indicating why this is necessary.

3 & 4 Name and Role of Corrspondent Name of Applicant on behalf of the body

    and position held i.e. secretary, chairperson, solicitor, accountant etc.

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5, 6,7,8 & 9 Permanent addresses, phone and fax numbers for future contact -

    These should reflect where the organisation is based and/or operates from. A post box number is not sufficient.

10. Tax reference number - If a tax reference number has been allocated to the

    body this should be stated. Such a number would have been obtained from the local Tax Office. If a body does not have a tax reference number already, it should get one at the local Tax Office. This is a separate requirement over and above the granting of exemption from tax. However the body may apply for charitable exemption in advance of acquiring a tax reference number.

11. Correspondence address only complete this if the address for correspondence

    is different to that given at no. 5.

     Please indicate whether the Charity has employees. 12. Employees

13 Charitable Activity -

     (a) Please indicate under which of the charitable headings - Relief of

     Poverty, Advancement of Education, Advancement of Religion, Other purpose of Benefit to the

     Community, the application is being made

     (b) Give a brief summary of the activities which are or will be carried on by the body to further the

     main object as et out in its governing instrument.

Part B - DETAILS OF OFFICERS/TRUSTEES/DIRECTORS

    The full name and address of every officer /trustee/director should be stated clearly. Also, any involvement or connection by any such person with another charity should be specified. It should be noted that there should be a minimum of three officers /trustees/directors and who are not related.

Part C - OBJECTIVES AND ACTIVITIES - SUPPORTING

    INFORMATION

1. Governing Instrument - A body seeking exemption from tax as a charity must be

    established formally by a Governing Instrument. (In the case of a charity about to be newly formed it must propose to adopt a Governing Instrument). To apply for exemption, a body can either be incorporated (i.e. formed as a company) or be unincorporated (i.e. established by a constitution, rules or trust.) A copy of the standard clauses required in the governing instrument of a body seeking charitable tax exemption is attached at Page 7

You should provide an official copy of your Governing Instrument as follows:

    In the case of an incorporated body, you need to provide a copy of the Certificate of Incorporation and the Memorandum and Articles of Association. In the case of a body not yet incorporated, a copy of the draft Memorandum and Articles of Association will suffice. It should be noted however, that an application for exemption will not be

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    examined on the basis of a Memorandum and Articles of Association alone (See „F‟ Enclosure Checklist). A copy of a standard Memorandum and Articles of Association for companies seeking charitable tax exemption is available on the Revenue website at http://www.revenue.ie/en/business/charities.html

    ; or may be obtained by contacting Charities Section.

In the case of an unincorporated body, an official copy or photocopy of the

    constitution, rules or trust document must be signed by the current officers or trustees. The document should also show the date from which it is effective. If an

    unincorporated body does not currently have a Governing Instrument, it will need to draw up the appropriate document. A copy of a sample Constitution for unincorporated bodies seeking charitable tax exemption is available on the Revenue website at http://www.revenue.ie/en/business/charities.html

     or may be obtained by contacting Charities Section ;

    If the Governing Instrument has been amended at any stage e.g. by supplementary deed(s) or by Special Resolution(s), copies of those amending documents should also be provided.

2.Statement of activities to date and of activities proposed - This statement must

    fully describe all aspects of the operation or intended operation of the body applying for exemption. If the description of the body's activities is vague or incomplete, or only a reiteration of the objects or purpose, this will delay the processing of the application as we will need to contact the body for more details. The statement should refer to the objects or purposes set out in the Governing Instrument (see number 1) and explain in full how the body intends to accomplish each of these objects or purposes. If the body has brochures, advertising or other published material, samples should be attached, as directed on the application form.

Part D - FINANCE AND FUNDING

    1. (a) Financial Statements - Financial statements normally include a Statement of Income and Expenditure as well as a Statement of Assets and Liabilities. These statements should relate to the most recent complete accounting period. Where the

    annual income exceeds ?100,000, accounts must be audited. If the body is not yet

    operating, or has not been in existence for a full year, a proposed budget or estimate of income and expenditure and assets and liabilities will suffice. The statements or estimate should indicate the proposed sources of income and should also account for the entire operations of the body.

    (b) Please provide details of the accounts where charitable funds are held i.e. name, number and type of account

    (c) If the body engages professional fundraisers please provide details of same i.e. names, addresses and P.P.S. numbers

    2. Where the body has not commenced activity please provide details of projected income and expenditure and indicate the main sources of income i.e. Government or other Public Funded Grants.

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3. Trading - A separate exemption is available under Section 208, Taxes

    Consolidation Act, 1997 in respect of trading income derived by a charity in pursuit of its objects. Trading exemption is not granted automatically with charitable exemption and must be applied for specifically if the body is either currently or may, in the future, be engaged in trading.

    Trading by charities can take a number of different forms but must fall into one of two broad categories:

     a. trades which are exercised in the course of the actual carrying out of a primary

     purpose of the charity, or

     b. trades carried on by the beneficiaries of the charity.

    In either case the profit of the trade must be applied solely for the purpose of the charity.

Part E - PROPERTY

    Provide details of of property owned by the body i.e. House/Office etc.

Part F ENCLOSURE CHECKLIST

    This checklist is provided for your assistance to ensure that all of the details required are provided with the initial application. Please remember that incomplete applications can lead to delays and further correspondence.

     Part G - DECLARATION

    The Revenue Commissioners need accurate information to carry out their functions. Please take care to ensure that the information you are giving is correct. The provision to the Revenue Commissioners of information which you know or suspect to be false in a material way may be an offence.

Part H - ADDRESS FOR COMPLETED APPLICATION FORMS

     Completed application forms should be forwarded to the Charities Section at the address provided.

    6. CONDITIONS ATTACHING TO EXEMPTION FROM TAX

    ; The income and property of the charity must be applied solely towards the promotion of its

     main object as set out in its Governing Instrument.

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    ; In all instances a copy of the first years financial accounts together with a report on activities

     must be submitted to Charities Section within 18 months of the date that exemption

    was granted.

     Furthermore, it should be noted that a body holding exemption may be reviewed

    periodically

     towards ensuring that the income of that body continues to be applied for charitable

    purposes only.

    ; If it is proposed to make any changes to the Governing Instrument of the organisation,

    advance notice

     in writing of the proposed changes must be given to the Revenue Commissioners for

    their approval.

    ; If upon the winding up of the organisation there remains any funds or property

    the same must be transferred to some charitable body having similar main

    objects, or failing that, to some other charitable body. Notification of winding

    up should be forwarded to the Revenue Commissioners together with a final set

    of accounts and details of how any residual funds at the time of dissolution

    were distributed.

    * Prior permission must be obtained from the Revenue Commissioners where it is intended to

     accumulate funds over a period in excess of two (2) years specifying the reason(s) why

    such

     funds are being accumulated rather than applied for charitable purposes.

    * No Director/Trustee/Officer shall receive any remuneration or other benefit in money or

    money‟s

     worth from the exempted body.

    * The Revenue Commissioners can make available to any person the name and address of any

     charity which has been granted exemption from tax.

    ; The Revenue Commissioners to be notified in writing of any change of address

    of the organisation

     ADDRESSES FOR CONTACT

     Exemption from Income Tax, Corporation Tax, Capital Gains Tax, DIRT and Dividend

    Withholding Tax.

    Office of the Revenue Commissioners

     Charities Section

     Government Offices

     Nenagh

     Co. Tipperary

     Tel: 067 63400 or (direct dial): 067 63377

     Low call 1890 66 63 33 Fax: 067-32916 email:

    charities@revenue.ie

    Stamp Duty : Issues relating to Stamp Duty are dealt with by three Revenue

    Offices

    Dublin Office of the Revenue Commissioners

     9

     Adjudication Section

     Stamp Duty Customer Service Unit

     Capital Taxes Division

     Dublin Castle

     Dublin 2

     Tel: 01- 6792777 Extns. 48552/3, 48556, 48558/9, 48560. Fax: 01-

    6790636

     Cork Revenue Office,Revenue House,Assumption Road,Blackpool, Cork. Telephone ; 021

    6027000

     Galway: (Galway Revenue Office) Hibernian House, Eyre Square, Galway. Tel; 091 536000

     Capital Acquisitions Tax Customer Service Unit

     Office of the Revenue Commissioners,Arus Brugha, 9/10 O‟Connell Street, Dublin 1.

     All other Counties should contact their local Revenue Office

    STANDARD CLAUSES REQUIRED IN THE GOVERNING INSTRUMENT OF A

    BODY SEEKING EXEMPTION FROM TAX AS BEING ESTABLISHED FOR

    CHARITABLE PURPOSES ONLY

    Income and Property

    The income and property of the company/trust/body shall be applied solely towards the

    promotion of its main object(s) as set forth in this Memorandum of Association / Deed of

    Trust /Constitution / Rules. No portion of the company/trust/body‟s income and property

    shall be paid or transferred directly or indirectly by way of dividend, bonus or otherwise

    howsoever by way of profit to members of the company/trust/body. No

    Director/Trustee/Officer shall be appointed to any office of the Company/trust/body paid by

    salary or fees, or receive any remuneration or other benefit in money or money‟s worth from

    the company/trust/body. However, nothing shall prevent any payment in good faith by the

    company/trust/body of:

     a. reasonable and proper remuneration to any member or servant of the

    company/trust/body (not being a Director/Trustee/Officer) for any services rendered to

    the company/trust/body;

     b. interest at a rate not exceeding 5% per annum on money lent by

    Directors/Trustees/Officers or other members of the company/trust/body to the

    company/trust/body;

     c. reasonable and proper rent for premises demised and let by any member of

    the company/trust/body (including any Director/Trustee/Officer) to the

    company/trust/body;

     d. reasonable and proper out-of-pocket expenses incurred by any

    Director/Trustee/Officer in connection with their attendance to any matter affecting the

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