Finance: Advice line - Pesh Framjee on finance and governance

Q. My organisation is a charity based in England, but we are not registered with the Charity Commission. We want to treat donations received as eligible for Gift Aid. Can we register with HM Revenue and Customs for this?

A charity is defined in section 506(1) of the Income and Corporation Taxes Act 1988 as "any body of persons or trust established for charitable purposes only". I have heard the view that it could be possible for an organisation (in England or Wales) that believed itself to be charitable to register with the HMRC to recover Gift Aid even if they were not registered with the Charity Commission. HMRC has clarified that this is not its approach.

Gift Aid was introduced by the Finance Act 1990 and section 25 of that Act refers to "a gift to a charity". In addition, HMRC's guidance states: "To claim repayment of tax under the Gift Aid scheme you must be a charity.

In England and Wales, you must be registered as a charity with the Charity Commission, unless you are excepted from registration."

If you are a charity based in England or Wales, you should consider why you are not registered. Prior to the Charities Act 1992, there was no requirement for charities to do so, but since the coming into force of this Act, there is now a statutory duty enshrined in section 3 of the Charities Act 1993 for charities in England and Wales to register with the Charity Commission.

HMRC has explained that it would "require a separately constituted body that is not exempt or excepted from registration with the Charity Commission to be registered with the commission before we accept it as a charity for tax purposes".

Pesh Framjee is head of the non-profit unit at Deloitte and special adviser to the CFDG. No liability arises to the author, his firm or Third Sector. Send your questions to pesh.framjee@haynet.com.

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