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1 Scleroderma National Conference Canada Revenue Agency & Registered Charities Presenters: Stephanie Buss, CPA, CA BDO Canada LLP Dom Cocco, CPA, CA BDO Canada LLP
2 Agenda Compliance and audits by the Canada Revenue Agency ( CRA ) Recent dealings with the CRA Recent court cases 1
3 Canada Revenue Agency s Focus Not-for-profit organizations Non-compliance for not meeting the definition of a not-for-profit organization Definition of a not-for-profit organization per 149(1)(l) of the Act A club, society, or association that, in the opinion of the Minister, was not a charity within the meaning assigned by subsection 149.1(1) and that was organized and operated exclusively for social welfare, civic improvement, pleasure or recreation or for any other purpose except profit, no part of the income of which was payable to, or was otherwise available for the personal benefit of any proprietor, member or shareholder thereof unless the proprietor, member or shareholder was a club, society or association the primary purpose and function of which was the promotion of amateur athletics in Canada. Benefit of having the not-for-profit status is that you are exempt from tax on any taxable income earned 2
4 Canada Revenue Agency s ( CRA s ) focus Registered charities Non-compliance for not; Meeting the definition of a charitable organization Following rules and regulations Having accurate Books and records Definition of a charitable organization per subsection 149.1(1) of the Act An organization, whether or not incorporated, Devotes all of its resources to charitable activities carried on by the organization No part of the net income of which is payable or available for the personal benefit of any proprietor, member, shareholder, trustee or settlor thereof, More than 50% of the directors, trustees, officers deal at arm s length with each other is not, and would not if the organization were a corporation, controlled directly or indirectly by a person who contributed > 50% of the capital to the organization or by a group of persons that do not deal at arm s length with each other About 1% of registered charities across Canada are audited yearly ( charities) 3
5 Compliance and audits To promote compliance the Charities directorate monitors the operations of registered charities to make sure they comply with the charities obligations. The Charities Directorate approaches compliance through education first by using one of the following approaches; Website has a variety of literature and guidance Outreach program via webinars, either live or recorded Client service program representatives are available to answer questions via phone or in writing Reminder letters Reminder letters are an educational tool used outside of an audit when the charities directorate has identified, through their monitoring activities, possible areas of noncompliance. The letters refer charities to available information in order to help them comply voluntarily with the requirements of registration Audit program 4
6 Charity audits by CRA How is a charity selected for audit? The most common reasons a charity will be selected for an audit are: random selection; referral from another area of the CRA; complaints from the public; articles in the media or other publically available sources; review of specific legal obligations under the Income Tax Act; information from their T3010 annual information return; and follow-up on a previous compliance agreement. 5
7 Charity audits by CRA When the CRA has finished its audit, it will send the charity a letter outlining the results. If the charity s operations and all its activities are in line with the Act, the CRA will confirm in writing that there will be no change to the charity s registered status. When the audit uncovers that the charity is not following the Act, the CRA will send the charity a letter that: outlines in detail each of the CRA s concerns; gives its preliminary view of whether the charity needs to take corrective actions or whether the non-compliance warrants imposing sanctions or revoking or annulling the charity s registration; and gives the charity the chance to make representations before the CRA comes to a final decision. Generally, the CRA gives a charity 30 days to reply to its concerns, although the charity can request an extension. 6
8 Basic Checklist of Charities Engage only in allowable activities - Must carry on its own charitable activities or gift to qualified donees. - Must NOT engage in prohibited political activities or unrelated business activities Keep adequate books and records Issue complete and accurate donation receipts Meet annual spending requirements( disbursement quota) File annual T3010 Information return due within six months after year end Maintain the charity s status as a legal entity Inform the Charities Directorate of any changes to the charity s mode of operation or legal structure. 7
9 What is a Complete and Accurate Donation Receipt? Official donation receipts of the charity must contain these mandatory elements: For gifts of cash: - a statement that it is an official receipt for income tax purposes; - the name and address of the charity as on file with the CRA; - the charity's or RCAA's registration number (not required for other qualified donees); - the serial number of the receipt; - the place or locality where the receipt was issued; - the day or year the donation was received; - the day on which the receipt was issued if it differs from the day of donation; - the full name and address of the donor; - the amount of the gift; - the value and description of any advantage received by the donor; - the eligible amount of the gift; - the signature of an individual authorized by the charity to acknowledge donations; and - the name and website address of the Canada Revenue Agency. 8
10 What is a Complete and Accurate Donation Receipt? For non-cash gifts (gifts in kind), these additional elements: - the day on which the donation was received (if not already indicated); - a brief description of the property transferred to the charity; - the name and address of the appraiser (if property was appraised); and - the deemed fair market value of the property in place of amount of gift above. An appraisal is recommended for items valued at $1,000 or more. A registered charity cannot issue receipts for the following: - for contributions of services provided to the charity (services do not qualify as gifts); - on behalf of another organization or charity; - in a name other than the name of the true donor. 9
11 What is a Complete and Accurate Donation Receipt? Did the donor receive an advantage? When a donor receives an advantage or consideration for a donation, part or all of the donation may no longer qualify as a gift. Examples of advantages might include: - a ticket to an event; - use of property; or - a dinner and/or performance at a fundraising event. If an advantage is received by the donor, and the charity is issuing official donation receipts, they must split the amount received between the gift and the advantage received by the donor. 10
12 What is a Complete and Accurate Donation Receipt? Split receipting Split receipting is the method used to calculate the eligible amount of a gift for receipting purposes when the donor has received an advantage (consideration) in return for his or her donation. To figure out the eligible amount of the gift, a charity has to subtract the fair market value (FMV) of the advantage from the FMV of the gift. How does a registered charity determine the fair market value (FMV) of a fundraising dinner? To determine the fair market value of a fundraising dinner, the value of a comparable meal provided by a comparable facility will have to be established. If the event is held at a restaurant, then the price the restaurant would charge a regular customer is the comparable value. In this regard, it is acceptable to take into account group or banquet rates. 11
13 What is a Complete and Accurate Donation Receipt? What is the intention to make a gift threshold? When the FMV of an advantage received for a gift is more than 80% of the FMV of the gift itself, the Canada Revenue Agency (CRA) generally considers that there is no true intention to make a gift. Therefore, a charity cannot issue a receipt. Example: An individual donates $100 to a charity an in return receives a ticket to an art exhibit valued at $50 FMV of gift $100 FMV of advantage (ticket received by donor) $50 Intention to make a gift threshold (80% of FMV of gift $80 Since the FMV of the advantage received falls within the intention to make a gift threshold, the charity can issue a receipt. If the FMV of the advantage had been $81 or more, the gift threshold would not have been met and the charity could not issue a receipt. 12
14 Annul vs. Revoke a charity s status Annulment Registration is cancelled as through it never existed. Generally annulled for the following reasons: registration was granted in error the organization no longer qualifies as a registered charity because of a change in the law. 13
15 Annulment Annulment of registration: In rare cases, an audit may find that a charity was not established and operated for exclusively charitable purposes when it was registered, or a change of law has caused it to no longer qualify as a charity. Although the CRA is obligated to remove the charity s registration because it should never have been registered, it may be unfair to penalize it by applying the revocation tax to any assets it has accumulated. In such cases, the Act allows the CRA to propose to annul the charity s registration. A charity whose registration is annulled can no longer issue tax receipts, but it can keep its assets. 14
16 Annulment Consequences of annulment Deemed never to have been registered as a charity No longer exempt from income tax No longer permitted to issue official donation receipts. Receipts issued before the date of the notice of annulment of registration will be valid donation receipts for tax purposes No longer required to file form T3010 Registered Charity Information Return Will have its name posted on the list of annulled charities on the charities and giving webpages 15
17 Revocation Revocation of registration When the CRA finds a serious case of non-compliance, it will propose revoking the charity s registered status. Although the CRA usually uses revocation as a last resort, under the Act the CRA can revoke a charity s registration at any time, when it is appropriate. This includes situations where: the non-compliance is serious and intentional; the non-compliance has had a substantial, adverse effect on others (beneficiaries, donors, or funders); or the charity had a previous record of serious non-compliance or cannot or will not follow the rules. A charity whose registration is revoked must dispose of its assets within one year to other charities or pay a 100% revocation tax on any assets remaining. This tax helps make sure the funds donated for charitable purposes stay in the charitable sector. 16
18 Recent Dealings with CRA With CRA s audit initiative surrounding not-for-profit organizations and registered charities, we had one of our clients undergo an audit of their books and records for 2012 and 2013 The client became a registered charity in 2004 with a set purpose Over the years the charity has added activities and attractions that are run by the charity CRA examined each activity that the charity was organizing to determine if they were in line with the purpose of the charity at the time it was registered The largest revenue generating activity the charity runs was questioned by CRA how was it related to the stated purpose of the charity? Given this activity has existed since the year of registration, CRA proposed to annul the charity s registration under the Act 17
19 Recent Dealings with CRA Outcome of the proposed annulment We are still in discussions with the CRA, however we have come to an understanding that the charity will lose it s current charity status. However, they can separate their business activities into a taxable entity and then re-apply for charity status with respect to their charity activities. It may then be possible for the taxable entity (likely a new corporation) to donate some or most of its profit to the charity if the Board of Directors of the taxable entity chooses to do so. 18
20 Recent Cases related to registered charities Guindon vs. The Queen Large penalty charged personally to Ms. Guindon under section 163.2(4) of the Act totaling almost $550,000 in respect of false statements made by her in donation receipts issued by her on behalf of a charity Donation scheme involved donees acquiring real estate time share units in Turks & Caicos at a wholesale cash price, then donating to the charity at a higher Fair Market Value retail price and obtaining a donation receipt for the higher amount. She (a lawyer) was the President of the charity. She signed off on 135 tax receipts totaling almost $4 million issued to participants in the donation scheme The penalty is for those who make a statement and who know or would reasonably be expected to know that the statement is false, and that the statement could be used by another person for purposes of the Income Tax Act. The facts showed that no time share units were ever created and therefore no donation of the units could have occurred. The courts concluded that she knew or would reasonably be expected to have known that the tax receipts would be used by the taxpayers to claim the unwarranted tax credits 19
21 Recent Cases related to registered charities Humane Society of Canada The Minister revoked the charity s registration as some of the activities did not relate to the charitable purpose In 2007, the CRA audited their 2006 records and found the following concerns; A large portion of the charity s resources did not seem to be devoted to the charitable purposes for which it was registered; Personal expenditures of Mr. O Sullivan (director, officer and member of the charity) had been reimbursed by the charity (some $250,000 worth); and The books and records did not separate Mr. O Sullivan s personal expenses from the charity s and they did not demonstrate a direct link between the expenses and its charitable activities. This case outlines the importance of ensuring that the charity evaluates its activities frequently to ensure they continue to meet the definition of a charitable organization under subsection 149.1(1) of the Act. 20
22 Questions? 21
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