Part 11Charitable companies etc

Chapter 4Restrictions on exemptions

Restrictions on exemptions

492Restrictions on exemptions

(1)

This section applies if a charitable company has a non-exempt amount for an accounting period (see section 493).

(2)

The exemptions mentioned in subsection (3) do not apply, and are treated as never having applied, to so much of any income of the charitable company for the accounting period as is attributed under section 494 to the non-exempt amount.

(3)

Those exemptions are—

(a)

the exemptions under this Part, and

(b)

the exemption under regulation 31(1) of the Offshore Funds (Tax) Regulations 2009 (S.I. 2009/3001) (exemption from corporation tax in respect of certain offshore income gains).

(4)

Section 256(4) of TCGA 1992 contains corresponding restrictions which apply in relation to section 256(1) of that Act (gains accruing to charities not to be chargeable gains).

493The non-exempt amount

(1)

A charitable company has a non-exempt amount for an accounting period if it has—

(a)

non-charitable expenditure for the period (amount A), and

(b)

attributable income and gains for the period (amount B).

(2)

The non-exempt amount for the accounting period is—

(a)

amount A, or

(b)

if less, amount B.

(3)

For the purposes of this Part—

(a)

a charitable company's “attributable income” for an accounting period is the charitable company's income for the period that is exempt from corporation tax as a result of any of the exemptions mentioned in section 492(3),

(b)

a charitable company's “attributable gains” for an accounting period are any gains accruing to the charitable company in the period that as a result of section 256(1) of TCGA 1992 are not chargeable gains, and

(c)

a charitable company's “attributable income and gains” for an accounting period is the sum of its attributable income for the period and its attributable gains for the period.

(4)

In applying subsection (3)(a) ignore any restrictions on the exemptions under this Part which result from section 492(2).

(5)

In applying subsection (3)(b) ignore any restriction on the exemption under section 256(1) of TCGA 1992 which results from section 256(4) of that Act.

494Attributing income to the non-exempt amount

(1)

This section applies if a charitable company has a non-exempt amount for an accounting period.

(2)

Attributable income of the charitable company for the accounting period may be attributed to the non-exempt amount but only so far as the non-exempt amount has not been used up.

(3)

The non-exempt amount can be used up (in whole or in part) by—

(a)

attributable income being attributed to it under this section, or

(b)

attributable gains being attributed to it under section 256C of TCGA 1992.

(4)

The whole of the non-exempt amount must be used up by—

(a)

attributable income being attributed to the whole of it under this section,

(b)

attributable gains being attributed to the whole of it under section 256C of TCGA 1992, or

(c)

a combination of attributable income being attributed to some of it under this section and attributable gains being attributed to the rest of it under section 256C of TCGA 1992.

495How income is attributed to the non-exempt amount

(1)

This section is about the ways in which attributable income can be attributed to a non-exempt amount under section 494.

(2)

The charitable company may specify the attributable income that is to be attributed to the non-exempt amount.

(3)

A specification under subsection (2) is made by notice to an officer of Revenue and Customs.

(4)

Subsection (6) applies if—

(a)

an officer of Revenue and Customs requires a charitable company to make a specification under this section, and

(b)

the charitable company has not given notice under subsection (3) of the specification before the end of the required period.

(5)

The required period is 30 days beginning with the day on which the officer made the requirement.

(6)

An officer of Revenue and Customs may determine the attributable income that is to be attributed to the non-exempt amount.

Non-charitable expenditure

496Meaning of “non-charitable expenditure”

(1)

For the purposes of this Part a charitable company's non-charitable expenditure for an accounting period is—

(a)

any loss made in the accounting period in a trade carried on by the charitable company unless—

(i)

the trade is a charitable trade, or

(ii)

the trade is not a charitable trade but profits of the trade arising in the period would be exempt from corporation tax as a result of one of the exemptions in section 480, 483 or 484,

(b)

any loss made in the accounting period in a trade, or in a UK property business or an overseas property business, carried on by the charitable company, if—

(i)

the loss relates to land, and

(ii)

profits of the trade, or income of the business, generated from the land in the period would not be exempt from corporation tax as a result of the exemptions in section 485,

(c)

any loss made in the accounting period in a miscellaneous transaction entered into by the charitable company otherwise than in the course of carrying out a charitable purpose,

(d)

any expenditure incurred by the charitable company in the accounting period which is not incurred for charitable purposes only and is not required to be taken into account in calculating—

(i)

the profits of, or losses made in, any trade, UK property business or overseas property business carried on by the charitable company, or

(ii)

the profit or loss made in any miscellaneous transaction entered into by the charitable company,

F1(e)

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F1(f)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g)

the amount of any of the charitable company's funds that is invested in the accounting period in an investment which is not an approved charitable investment (see section 511), and

(h)

any amount lent in the accounting period by the charitable company, if the loan is neither an investment nor an approved charitable loan (see section 514).

But anything which falls within more than one of the above paragraphs counts as non-charitable expenditure only once.

(2)

An amount may also be non-charitable expenditure for an accounting period as a result of section 515 (excess expenditure treated as non-charitable expenditure of earlier periods).

(3)

This section needs to be read with—

  • section 479 (meaning of “charitable trade”),

  • sections 497 to 501 (supplementary provision in relation to this section, in particular in relation to subsection (1)(d), (g) and (h)),

  • sections 502 to 510 (transactions with substantial donors),

  • section 511 (approved charitable investments), and

  • section 514 (approved charitable loans).

497Section 496: supplementary

(1)

This section applies for the purposes of section 496.

(2)

A transaction is a miscellaneous transaction if it is of such a nature that, if income or gains had arisen from it (ignoring section 481 (exemption from charges under provisions to which section 1173 applies)), it would have been charged to corporation tax under or by virtue of any provision to which section 1173 applies.

(3)

For rules about the calculation of losses, see—

(a)

section 47 of CTA 2009 (losses of a trade calculated on same basis as profits),

(b)

section 210 of that Act (which applies section 47 of that Act, so that losses of a UK property business or overseas property business are calculated on the same basis as profits), and

(c)

section 1306 of that Act (losses from miscellaneous transactions calculated on same basis as miscellaneous income).

498Section 496(1)(d): meaning of expenditure

(1)

For the purposes of section 496(1)(d) “expenditure” includes expenditure of a capital nature.

(2)

None of the following is “expenditure” for those purposes—

(a)

the investment of any of the charitable company's funds,

(b)

the making of a loan by the charitable company, or

(c)

the repayment by the charitable company of the whole or a part of a loan made to it.

499Section 496(1)(d): accounting period in which certain expenditure treated as incurred

(1)

This section applies for the purposes of section 496(1)(d).

(2)

Subsection (3) applies to expenditure which is referable to commitments (whether or not of a contractual nature) that the charitable company has entered into before or during an accounting period.

(3)

The expenditure is treated as incurred in the accounting period if, had the charitable company been required to draw up accounts that met the requirements mentioned in subsection (4), the expenditure would have been required to be taken into account in preparing those accounts.

(4)

The requirements referred to in subsection (3) are—

(a)

that the accounts are drawn up for the accounting period, and

(b)

that UK generally accepted accounting practice applies with respect to them.

500Section 496(1)(d): payment to body outside the UK

A payment made, or to be made, to a body situated outside the United Kingdom is non-charitable expenditure under section 496(1)(d) if—

(a)

it is incurred for charitable purposes only, but

(b)

the charitable company has not taken such steps as F2the Commissioners for Her Majesty's Revenue and Customs consider are reasonable in the circumstances to ensure that the payment will be applied for charitable purposes.

501Section 496(1)(g) and (h): investments and loans

(1)

Subsection (2) applies if in an accounting period a charitable company—

(a)

realises the whole or part of an investment which was made in the period and is not an approved charitable investment (see section 511), or

(b)

is repaid the whole or part of a loan which was made in the period and is neither an investment nor an approved charitable loan (see section 514).

(2)

Any further investment or lending in the accounting period of the sum realised or repaid, so far as it does not exceed the sum originally invested or lent, is not non-charitable expenditure as a result of section 496(1)(g) or (h).

Substantial donor transactions

F3502Transactions with substantial donors

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F3503Meaning of “relievable gift”

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F3504Non-charitable expenditure in substantial donor transactions

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3505Adjustment if section 504(1) and (2) applied to single transaction

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F3506Section 504: certain payments and benefits to be ignored

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F3507Transactions: exceptions

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F3508Donors: exceptions

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F3509Connected charities

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F3510Substantial donor transactions: supplementary

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Approved charitable investments and loans

511Approved charitable investments

An investment is an approved charitable investment for the purposes of section 496 (meaning of “non-charitable expenditure”) if it is an investment of any of the following types.

  • Type 1

    An investment to which section 512 applies.

  • Type 2

    An investment in a common investment fund established under—

    1. (a)

      section 22 of the Charities Act 1960,

    2. (b)

      section 24 of the Charities Act 1993,

    3. (bb)

      F4section 96 of the Charities Act 2011, or

    4. (c)

      section 25 of the Charities Act (Northern Ireland) 1964.

  • Type 3

    An investment in a common deposit fund established under—

    1. (a)

      section 22A of the Charities Act 1960, F5...

    2. (b)

      section 25 of the Charities Act 1993. F6or

    3. (c)

      section 100 of the Charities Act 2011.

  • Type 4

    An investment in a fund which—

    1. (a)

      is similar to a fund mentioned in relation to Type 2 or 3, and

    2. (b)

      is established for the exclusive benefit of charities by or under a provision relating to any particular charities or class of charities contained in an Act (including an Act of the Scottish Parliament).

  • Type 5

    An interest in land, other than an interest held as security for a debt.

  • Type 6

    Any of the following issued by Her Majesty's Government in the United Kingdom—

    1. (a)

      bills,

    2. (b)

      Certificates of Tax Deposit,

    3. (c)

      Savings Certificates, and

    4. (d)

      Tax Reserve Certificates.

  • Type 7

    Northern Ireland Treasury Bills.

  • Type 8

    Units in a unit trust scheme (as defined in section 237(1) of FISMA 2000) or in a recognised scheme (as defined in section 237(3) of FISMA 2000).“Units” is defined in section 237(2) of FISMA 2000.

  • Type 9

    A deposit with a bank (as defined in section 1120)—

    1. (a)

      in respect of which interest is payable at a commercial rate, and

    2. (b)

      which is not made as part of an arrangement under which a loan is made by the bank to some other person.

  • Type 10

    A deposit with—

    1. (a)

      the National Savings Bank,

    2. (b)

      a building society, or

    3. (c)

      a credit institution which operates on mutual principles and which is authorised by an appropriate governmental body in the territory in which the deposit is taken.

  • Type 11

    Certificates of deposit (including uncertificated eligible debt security units as defined in section 986(3) of ITA 2007).

  • Type 12

    A loan or other investment as to which an officer of Revenue and Customs is satisfied, on a claim, that it is made for the benefit of the charitable company and not for the avoidance of tax (whether by the company or any other person).

512Securities which are approved charitable investments

(1)

The investments to which this section applies are investments in securities—

(a)

issued or guaranteed by F7Her Majesty’s Government in the United Kingdom or by the government of a member State of the European Union,

(b)

issued or guaranteed by the government or a governmental body of any territory or part of a territory,

(c)

issued by an international entity listed in the Annex to Council Directive 2003/48/EC (directive on taxation of interest payments),

(d)

issued by an entity meeting the four criteria set out at the end of that Annex,

(e)

issued by a building society,

(f)

issued by a credit institution which operates on mutual principles and which is authorised by an appropriate governmental body in the territory in which the securities are issued,

(g)

issued by an open-ended investment company,

(h)

issued by a company and listed on a recognised stock exchange, or

(i)

issued by a company but not listed on a recognised stock exchange.

(2)

Subsection (1) is subject to section 513.

(3)

In this section and in section 513—

“debentures” includes—

(a)

debenture stock and bonds (whether constituting a charge on assets or not), and

(b)

loan stock or notes,

“open-ended investment company” is to be read in accordance with sections 613 and 615,

“securities” includes shares and debentures, and

“shares” includes stocks.

513Conditions to be met for some securities

(1)

Section 512 does not apply to an investment by virtue of subsection (1)(b), (c) or (d) of that section unless—

(a)

condition A is met in relation to the securities, and

(b)

if the securities are shares or debenture stock, condition B is met in relation to the securities.

But see subsection (3) of this section.

(2)

In the case of an investment in securities issued by a company which is incorporated, section 512 does not apply to the investment by virtue of subsection (1)(i) of that section unless—

(a)

condition A is met in relation to the securities,

(b)

if the securities are shares or debenture stock, condition B is met in relation to the securities, and

(c)

condition C is met in relation to the company.

But see subsection (3) of this section.

(3)

Conditions A and B need not be met if the securities are traded or quoted on a money market supervised by the government or a governmental body of any territory or part of a territory.

(4)

Condition A is that the securities are traded or quoted on—

(a)

a recognised investment exchange (as defined in section 285(1) of FISMA 2000), or

(b)

an investment exchange which constitutes the principal or only market established in a territory on which securities admitted to official listing are dealt in or traded.

(5)

Condition B is that—

(a)

the securities are fully paid up,

(b)

the terms of the issue of the securities require them to be fully paid up within the period of 9 months beginning with the day after the day on which they are issued, or

(c)

the securities are shares issued with no nominal value.

(6)

Condition C is that—

(a)

throughout the last business day before the investment day, the company has total issued and paid up share capital of at least £1,000,000 (or the equivalent of £1,000,000 in some other currency), and

(b)

in each of the 5 years immediately before the calendar year in which the investment day falls, the company paid a dividend on all the shares issued by the company (excluding any shares issued after the dividend was declared and any shares which by their terms of issue did not rank for dividend for that year).

(7)

For the purposes of the words in brackets in subsection (6)(a) use the exchange rate prevailing in the United Kingdom at the close of business on the last business day before the investment day.

(8)

For the purposes of subsection (6)(b) a company formed—

(a)

to take over the business of another company or other companies, or

(b)

to acquire the securities of, or control of, another company or other companies,

is treated as having paid a dividend in any year in which a dividend has been paid by the other company or all of the other companies (as the case may be).

(9)

It is irrelevant that the company is formed for other purposes in addition to those mentioned in paragraph (a) or (b) of subsection (8).

(10)

In this section—

“business day” means, in relation to an investment, a business day in the place where the investment is made, and

“the investment day” means, in relation to an investment, the day on which the investment is made.

514Approved charitable loans

(1)

A loan is an approved charitable loan for the purposes of section 496 (meaning of “non-charitable expenditure”) if it meets conditions A and B.

(2)

Condition A is that the loan is not made by way of investment.

(3)

Condition B is that either—

(a)

the loan is made to another charity for charitable purposes only,

(b)

it is made to a beneficiary of the charitable company in the course of carrying out the purposes of the charitable company,

(c)

it consists of money placed on current account with a bank otherwise than as part of an arrangement under which a loan is made by a bank to some other person, or

(d)

an officer of Revenue and Customs is satisfied, on a claim, that the loan is made for the benefit of the charitable company and not for the avoidance of tax (whether by the charitable company or by some other person).

(4)

In this section “bank” has the meaning given by section 1120.

Carry back of excess non-charitable expenditure

515Excess expenditure treated as non-charitable expenditure of earlier periods

(1)

This section applies if a charitable company's non-charitable expenditure for an accounting period exceeds its available income and gains for the period.

(2)

The excess is the charitable company's “excess expenditure” for the accounting period.

(3)

The charitable company's excess expenditure for the accounting period is treated for the purposes of this Part as non-charitable expenditure for earlier accounting periods so far as it can be attributed to earlier accounting periods under section 516.

(4)

For the purposes of this Part a charitable company's “available income and gains” for an accounting period is the sum of—

(a)

the amount in respect of which the charitable company is chargeable for the period under the charge to corporation tax on income after giving effect to any exemption under this Part,

(b)

any chargeable gains accruing to the charitable company in the period,

(c)

the charitable company's attributable income and gains for the period (see section 493), and

(d)

any non-taxable sums received by the charitable company in the period.

(5)

In subsection (4) “non-taxable sums” means donations, legacies and other sums of a similar nature which, ignoring exemptions from corporation tax under this Part and under section 256 of TCGA 1992, are not liable to corporation tax.

(6)

Any restrictions on the exemptions under this Part which result from sections 492(2) and 494 are to be ignored in calculating the amount mentioned in subsection (4)(a).

(7)

Any restriction on the exemption under section 256(1) of TCGA 1992 which results from section 256(4) of that Act is to be ignored in calculating the amount of any chargeable gains to be taken into account in accordance with subsection (4)(b).

516Rules for attributing excess expenditure to earlier periods

(1)

The rules in this section apply for attributing a charitable company's excess expenditure for an accounting period to earlier accounting periods under section 515.

(2)

The excess expenditure for an accounting period may be attributed to an earlier accounting period if—

(a)

the earlier period ends not more than 6 years before the end of the period in question, and

(b)

the charitable company's available income and gains for the earlier period exceed its non-charitable expenditure for the earlier period.

(3)

If the conditions in subsection (2) are met in the case of more than one earlier accounting period, the excess expenditure is to be attributed to a later accounting period in priority to an earlier accounting period.

(4)

The amount of excess expenditure that is to be attributed to an earlier accounting period must not be greater than the amount by which the charitable company's available income and gains for the earlier period exceed its non-charitable expenditure for the earlier period.

(5)

For the purposes of subsections (2)(b) and (4) the charitable company's non-charitable expenditure for the earlier accounting period includes any excess expenditure attributed to the earlier period as a result of a previous operation of this section, but ignores the attribution in question.

517Adjustments in consequence of section 515

Such adjustments must be made (whether by way of the making of assessments or otherwise) as may be required in consequence of section 515.