Transcript Document
Charity Law Information Program (CLIP) Foreign Activities by Canadian Charities: A Basic Primer on International Activities and Regulatory Issues
December 10, 2009 Mark Blumberg ( [email protected]
) Production of this workshop and materials was made possible by a financial contribution from the Canada Revenue Agency
Who We Are – Capacity Builders
• • • • • • • Capacity Builders is a division of the Ontario Community Support Association (OCSA) and it runs the
Charity Law Information Program (CLIP) CLIP provides training, workshops, and webinars to Canadian charities to enhance their understanding of their legal, ethical, and governance obligations
http://www.capacitybuilders.ca/clip CLIP Communiqué – sign up for free (416) 256 – 3010 x 232 or 1-877-484-3030 [email protected]
The Charities Directorate of CRA has provided funding for CLIP
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Who We Are – Blumbergs
• • • • • • • Blumberg Segal LLP is a law firm based in Toronto, Ontario Mark Blumberg is a partner at Blumbergs who focuses on non-profit and charity law Assists charities from across Canada with Canadian and international operations and foreign charities fundraising here www.canadiancharitylaw.ca
and www.globalphilanthropy.ca
Free Canadian Charity Law Newsletter. Sign up at: http://www.canadiancharitylaw.ca/index/php/pages/subscribe (416) 361 – 1982 or 1-866-961-1982 [email protected]
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Charities Directorate of CRA
• • • • • • • Regulates registered charities Based in Ottawa and other offices throughout Canada Website: www.cra.gc.ca/charities E-mail list: www.cra-arc.gc.ca/esrvc srvce/mllist/sbscrbchrts-eng.html
Webinars: www.cra-arc.gc.ca/tx/cmmnctn/sssns/wbnrs eng.html
Telephone: 1-800-267-2384 (English) 1-888-892-5667 (Bilingual) Through CPOP supporting 19 charities conducting educational work on legal and
Income Tax Act
compliance.
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Introduction
• Legal information not legal advice • Views expressed are our own • Questions during and at end • Logistics and timing
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Overview
•
Who we are
•
Work outside charitable area
•
Charitable Sector and international activities
•
Income Tax Act rules and CRA guidance on foreign activities 6
Good Work Outside Charity Realm
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Carrying on Good Works Abroad Outside the Charity Sphere
• • • • • • Personal donations of cash or in kind items to foreign charities, no tax receipt Doing business in developing countries Corporate social responsibility (CSR), donations, sponsorship, advertising, etc… For Profit “non-profit” – google.org, micro-loans Non-profit without charitable status – if no need to issue tax receipts Avoiding abusive transactions and paying fair share of taxes
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Carrying on Good Works Abroad Outside the Charity Sphere
• • • • • Volunteering – at home and abroad Remittances – gifts to family, friends, former employees abroad Encourage Canadian government to fulfill commitment of 0.7% of GNI Encourage Canadian companies operating outside of Canada to do so legally and ethically Our own actions – the goods we consume, environmental footprint, what we buy
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Charitable Sector in Canada
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Voluntary Sector in Canada
• • • • • • 161,000 non-profits in 2003 (federal and provincial and unincorporated) 83,500 Registered Charities (as of 2008) 2 million on payroll $112 Billion in revenue, 49% from Government, earn 35%, 13% donations 2/3 have revenue under $100,000
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Variety of Charities
• 12,000 carried on ‘programs’ outside of Canada – humanitarian assistance, development, education, religious, arts, etc… 4000 spent funds outside Canada • Every charity is different – objects / areas of charitable work / philosophy / risk tolerance / public profile / donors / level of government support / independent vs. international affiliations / resources / knowledge / local vs. international activities
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Importance of Global Philanthropy
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Importance for our Planet
• Great Challenge – 1.2 billion people live on less than a $1 per day, 11 million children under 5 die each year, 1 billion people lack access to clean water, neglected diseases, HIV/AIDS, natural disasters etc… • World is getting smaller – SARS, Tsunamis • Effect - $1 in Canada achieves $20-$40 in India
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Importance for Organization
• Fulfills objects of charity • Win/win (Canadian charity and foreign charity) • Staff morale and retention • Donor and stakeholder interests • Excellence
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Canadian charities by $ spent outside of Can.
1. WORLD VISION CANADA 2. CARE CANADA 3. INT. DEVELOPMENT RESEARCH CENTRE $287,877,830.00
$187,223,833.00
$97,565,681.00
4. HAMILTON HEALTH SCIENCES CORP.
5. PLAN INTERNATIONAL CANADA INC. 6. THE CANADIAN RED CROSS SOCIETY $92,855,349.00
$54,146,626.00
$48,245,075.00
7. UNITED ISRAEL APPEAL OF CANADA INC 8. THE SAMARITAN'S PURSE ‐ CANADA 9. CHRISTIAN CHILDREN'S FUND OF CANADA $40,726,294.00
$35,955,229.00
$33,644,359.00
10. MENNONITE CENTRAL COMMITTEE CANADA $32,159,078.00
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Canadian Charities Foreign Expenditures
2002- $1.4 Billion 2004- $1.8 Billion 2005- $2.1 Billion 2006 - $2.3 Billion
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Some statistics
Philanthropy Philanthropy (development) Philanthropy (development) ODA (“foreign aid”) Remittances Canadian investment $2.3 billion $1.1 billion (Hudson) $0.7 billion (CCIC) $3.68 billion $8.9 billion $ ?
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Income Tax Act and CRA Guidance on Foreign Activities
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CRA General Considerations
• Objects exclusively charitable • Activities within objects • Only undertake charitable activities (relieve poverty, advance education, advance religion, other purposes beneficial to the community that the law considers charitable) • Cannot violate Canadian public policy or be illegal under Canadian law
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CRA General Considerations (cont)
• Adequate books and records in Canada • Disbursement quota (“80/20 rule”) • No partisan political activities, only limited allowable non-partisan political activities (10% rule) • No unrelated business activities
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Canadian Charity World Divided in Two
•
Qualified donees
– can issue official donation receipts for Income Tax Purposes •
Non-Qualified donees
official donation receipts – cannot issue
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List of Qualified Donees
• • • • registered charities; registered Canadian amateur athletic associations; registered national arts service organizations; housing corporations in Canada set up exclusively to provide low-cost housing for the aged; • • a municipality; a municipal or public body performing a function of government in Canada; • the United Nations and its agencies;
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List of Qualified Donees (cont)
• universities outside Canada with a student body that ordinarily includes students from Canada (these universities are listed in Schedule VIII of the Income Tax Regulations); • charitable organizations outside Canada to which the Government of Canada has made a gift during the donor’s taxation year, or in the 12 months immediately before that period [IC 84-3R5]; and • the Government of Canada, a province, or a territory.
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How do I know if it is a Qualified donee?
If in doubt check CRA’s listing of charities, call CRA, or treat organization as a non-qualified donee.
• 83,000
registered charities
listed at CRA site: http://www.cra-arc.gc.ca/tx/chrts/menu-eng.html
•
Prescribed foreign universities
at Schedule VIII of the Canadian Income Tax Regulations, as provided in section 3503 http://laws.justice.gc.ca/en/showdoc/cr/C.R.C. c.945/sc:8/20090629/en?noCookie#anchorsc:8 •
A few Charitable organizations
outside Canada to which the Government of Canada has made a gift in last 2 years [IC84-3R5]; http://www.cra-arc.gc.ca/E/pub/tp/ic84-3r5/
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What is a non-qualified donee?
• All organizations other than qualified donees • They cannot issue official donation receipts Examples include: • Foreign charities • Canadian non-profits with no charitable status • Businesses • Bono, Obama, Angelina Jolie
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RC4106 Registered Charities: Operating Outside Canada
The Canadian
Income Tax Act
allows charities to conduct their charitable purposes by:
1)
giving monies to another "
qualified donee
" (usually a Canadian charity but also includes the United Nations, some foreign universities with Canadian students and a small number of foreign entities); or
2)
expenditures on their “
own activities
” (at home or abroad) No third option - A Canadian charity cannot just transfer money or gift/grant funds to a non qualified donee (including a foreign charity)
Canadian Registered Charity Qualified Donee, eg. Canadian registered Charity, UN, prescribed University, Canadian Municipality, etc “Own Activities” [Direction and Control] Employee Volunteer Structured Arrangement -Written agreement Intermediary – agency, JV, partner, contractor
CRA Consultation on Foreign Activities
Consultation on the Proposed Guidance on Activities Outside of Canada for Canadian Registered Charities
http://www.cra-arc.gc.ca/tx/chrts/plcy/cnslttns/ccrc-eng.html
Sets out CRA views on foreign activities and dealings between Canadian Registered charities and non-qualified donees • Period for comments ended September 30, 2009
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Why deal with a non-qualified donee?
Foreign Activities • You don’t have people in Malawi • You don’t have road building equipment in Haiti • Local people or organizations sometimes can do it quicker, better and more cost effectively Canadian Activities • The best organization to implement charitable project may be a non-profit (non-charity) or a business and not another registered charity
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“Own Activities” or “Direction and Control”
• • • • • • • • When not working with qualified donee or own staff: Investigate Intermediary (due diligence) Written agreement Detailed description of Activity Monitoring and Supervision Ongoing Instruction for changes Periodic Transfers Separate Activities and Funds Books and Records showing above
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Amount of Direction and Control
Less direction and control when sending certain types of ‘inherently’ charitable goods like blankets to a trusted relief agency in a disaster Most direction and control when sending cash If in doubt have more, rather than less, direction and control to protect your charity’s reputation, charitable status and the resources entrusted to you.
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Structured Arrangements
1) Employee or volunteer in foreign country 2) Agency agreement 3) Contractor 4) Joint venture agreement/joint ministry agreement 5) Cooperative participant agreement
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Written Agreements
Appendix E of Guidance – Checklist of the elements of a written agreement
•
For example:
Are the legal names and physical addresses of all parties provided?
• Is a clear, complete, and detailed description of the activities to be carried out by the intermediary provided? • Do the activities further the charity’s purposes?
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Conduit vs. Structured Arrangement
Conduits
– gifting resources to non-qualified donee, no direction and control, no description of activities, simply forwarding money, no monitoring, no reporting, no instructions
Structured Arrangement
– relationship with adequate direction and control –agreement, description of activity, progress payments etc.
See
Structured Arrangement versus Conduit for Canadian Charities and Foreign Activities
by Mark Blumberg http://www.globalphilanthropy.ca/images/uploads/Structured_Arrangement_versus_Conduit_for_Canadian_Charities_and_Foreign_Activities.pdf
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Books and Records
Not good enough to do good work Must be able to show you do good work English or French preferred Have books and records in Canada CRA discusses difficulty getting records – make “reasonable efforts”
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Further information
www.globalphilanthropy.ca
http://www.cra-arc.gc.ca/tx/chrts/plcy/cnslttns/ccrc eng.html
www.capacitybuilders.ca/clip
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Save the Dates!
February 22 & 23, 2010
Being Good at Doing Good: Safeguarding Yourself and Your Charity in a Complex World
Plan to join us in February for this groundbreaking conference that will explore good governance and accountability, financial controls, and how you can prevent your resources from being misused. For more information, visit http://www.capacitybuilders.ca/clip
Location: Toronto Board of Trade
Evaluation
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• Thank you for your participation today!
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