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Which entity is the best "fit" for your not-for-profit organisation?

Not-for-profit Law News | August 2014

It is important to note that some NFP organisations may qualify as "charities" and there are further requirements under tax laws, tax rulings, specific statutes and common law to be met in order to have status as a "charity".

A Trust

A trust is governed by a trustee, which can be either an individual or a company, for the benefit of the beneficiaries of the trust. The trust would essentially operate as the "trading vehicle" for the organisation and is established with a trust deed which governs the way in which the trust can be administered by the trustee. A trust does not have onerous mandatory compliance requirements (other than taxation compliance) in comparison to those imposed on corporations such as the need for Annual General Meetings (AGMs), maintaining up-to-date public records and accounting information. However, the trustee has a fiduciary duty to the beneficiaries of the trust and may be personally liable for any debts incurred as a result of the trustee's dealing with the assets of the trust.

An incorporated Association

An Incorporated Association (IA) is a legal entity separate from its individual members and has the ability to hold property, sue and be sued. An IA is incorporated and governed by relevant state legislation across the various states and territories within Australia [in NSW the Department of Fair Trading governs IA's] and is not the same as a "company" [which is governed by ASIC]. As such, an IA is restricted to operating within its "own" state jurisdiction and is not permitted to operate across borders. IAs are required to be managed by a committee and are subject to various compliance provisions in respect of the types of records they are required to keep.

A public company limited by guarantee

This is the most common structure for a NFP organisation and means that the liability of its members is limited to the amount the members undertake to contribute to the property of the company if it is wound up. A public company limited by guarantee is registered with the Australian Securities and Investments Commission (ASIC) and is subject to the strict compliance requirements which govern any other registered corporation. The members/shareholders are usually the directors of the company. You will require a Constitution and other documentation as is required for a company.

A special purpose Pty Ltd ("private") company

This is a special form of "private" or "Pty Ltd" company and is also referred to as a special purpose company. This type of company is generally set up for a specific purpose (i.e. to pursue certain charitable purposes) and do nothing else. This company, like all corporations, is governed by the contents of its constitution which sets out the purposes for which the company was created and the rules for its governance. On this point, it is important to note that the objects and purposes contained within the constitution of the company will need to be drafted to correspond with the requirements of a not-for-profit or charitable organisation within the meaning of the Charities Act 2013 (Cth).

Registration with the Australian Charities and Not for Profits Commission [the ACNC]

The ACNC is a relatively newly constituted government body that is responsible for the registration and regulation of not-for-profit organisations and has a similar role in relation to NFPs as ASIC does in relation to companies. The ACNC was created to regulate and monitor the charitable and NFP sector and to promote and maintain public confidence in charities. If you intend to operate your organisation as a NFP you will be required to register and report to the ACNC and comply with their requirements much the same as you would be required to comply with the requirements of and report to ASIC if you were operating a company. There are some exceptions as the requirements for registration of different types of NFP organisations has been staggered and at this stage the requirement is for charities [in all its definitions] are the only types of organisations required to be registered with the ACNC.

For more detailed information about the setting up of any of the above NFP organisations or the costs associated with doing so, please feel free to call our office directly and talk to one of our friendly staff who will be more than happy to assist you with your enquiries.

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