If your charity is considering a restructure of any kind, including winding up, the recently published Charities Regulator Guidelines, should be your first port of call.
The purpose of the Guidelines is to encourage and facilitate the better administration and management of charities, particularly in the context of winding up. The Guidelines outline the general requirements when winding up a charity, which are applicable to all forms of charities.
The Guidelines state that the Charities Regulator must be notified of the charity’s intention to wind up, before starting the process. The Guidelines also state that the charity must then provide the Charities Regulator with any information requested by it.
Where a charity holds a CHY number, it will also need to ensure that it complies with the Revenue Commissioners’ requirements in relation to winding up.
Winding up an incorporated charity
A charity which is a company must be wound up in accordance with the Companies Act 2014. It must also adhere to the requirements of its own constitution. The Guidelines provide a summary of the most common methods of winding up a company, including by way of voluntary strike-off, involuntary strike-off and liquidation.
Winding up an unincorporated charity
If an unincorporated charity has a governing document, it should wind up in accordance with any procedures specified in that document. If there is no specified procedure for winding up, the Guidelines set out a recommended process for winding up.
The charity trustees should be aware that once the charity is dissolved, they will hold any remaining assets on trust for the charitable purposes of the dissolved charity.
Winding up a charitable trust
The procedure for winding up a charitable trust is broadly similar to winding up an unincorporated charity. The charity trustees must comply with the rules in the governing document of the charity, which is usually a deed of trust or declaration of trust. If there is no specified procedure for winding up, the Guidelines set out a recommended approach. The trustees should remain aware of the risk of breach of trust if they still hold assets following the winding up of the trust.
Restructuring from one legal form of charity to another
The Guidelines set out the procedure to be followed in the event that a trust or unincorporated charity wishes to convert into a company. For example, it is important to ensure that the charity’s governing document contains a power which allows an incorporation to occur. It is also essential to ensure that, before the transfer of assets, the company is registered as a new charity with the Charities Regulator and has received a new registered charity number (“RCN”). The Guidelines provide that the Charities Regulator should be notified well in advance of conversion.
Merger of charities
The Guidelines provide recommendations in relation to the process to be followed if two charities decide to merge. Specific guidance is provided where the merger involves two companies and where the merger involves an unincorporated body.
The Guidelines published by the Charities Regulator provide clarity for charities in the event of a winding up or restructuring. This guidance will be of particular assistance to those charities that do not have a process for winding up set out in their governing instrument. The Guidelines note, however, that each charity must take advice appropriate to its own circumstances..