Charities and Constitutional Change

I was interested to see that OSCR, Scotland’s charity watchdog, has authorised Scotland’s 23,500 charities and voluntary organisations to take an active role in the independence debate if they wish.

One issue that is important to the charity sector is tax.  Charities for the most part do not pay tax.  Another important issue for the charity sector is administration and in particular when applying to become a charity.

It will be a surprise to many that just because a charity is registered with OSCR it is not automatically entitled to the various applicable tax reliefs.  A charity has to make a separate application to HMRC.

This causes two complications.  Charity law in Scotland differs from that of the rest of the UK.   For example Scotland’s list of “charitable purposes” is different. That is the first complication.

The second complication is that HMRC apply English and Welsh charity law principles.  This means that there is potentially less work for let’s say an English registered charity, as its original application to its Charity Commission was based on English and Welsh legal principles. A Scottish charity has to also ensure its application to HMRC meets English and Welsh charity law.

It this a huge issue? No.  Is it an issue that can cause problems?  Yes.  Was there a simple solution?  Of course there was.

The simple solution was if a charity is recognised by OSCR it should automatically be recognised by HMRC.  This was a matter I and others argued for before the Calman Commission.  Tax simplification is often talked about but rarely achieved.  This was an obvious opportunity.

How did I get on I hear you ask?  Not only did Calman not agree to this relatively simple measure but recommended that that some parts of Scottish charity law should be re-reserved.

The Scotland Act 2012 did not in fact re-reserve this area of responsibility in whole or even part.  I suspect that the main reason for this was how this would have looked at this particularly politically sensitive time.   The Scotland Act did in fact do nothing on this particular matter.

Possibly something for charities in Scotland to reflect on.

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