Set up Charity In Hong Kon

嘗試和平地結束感情，我把我的熱情另放他處。

Set up Charity In Hong Kong
Source: http://joechiucpa.com.hk/set_up_charity.html

One of the main ways to set up a club, association, school and charitable body in Hong Kong is by setting up a company limited by guarantee without share capital (“Company limited by guarantee”) in Hong Kong.

In a Company limited by guarantee, the liability of its members is limited to an agreed amount on winding up. In case the company is unable to settle its debts in full, the members of the company are not responsible for the unsettled debts after he has fully settled the agreed amount on winding up.
.
Limitation

A Company limited by guarantee is not able to authorize the payment of a dividend or to distribute profits to its members, either by way of a provision of its memorandum or articles, or by way of any resolution passed. If the company is a recognized charity, the memorandum or articles of the company prohibits the payment of any remuneration to the members of its governing body.


Tax Benefit

Every Company limited by guarantee is also subject to Profits Tax in the same way as private company unless application was made for exemption and related approval is obtained from the Government in Hong Kong. Once exemption is granted, the company enjoys the following three major advantages:

* the company is not subject to Profits Tax in Hong Kong provided it does not carry on trade or business. In case where the company carries on trade or business, its profits shall still be exempt from tax on certain condition.

*

the company is normally exempted from the obligation of business registration and therefore need not pay the annual business registration fee except that it carries on trade or business. In case where the company carries on trade or business, the obligation of business registration may still be waived on certain condition.

*

with certain limitation, donation made to the company is tax deductible in computing the assessable profits or income of the donor. As a result, this advantage greatly facilitates charity in raising fund and donation from the community.

A Tax Guide for Charitable Institutions and Trusts of a Public Character
Source: http://www.ird.gov.hk/eng/tax/ach_tgc.htm

This pamphlet is issued as a guide only. It has no binding force and does not affect a person's right of objection or appeal to the Commissioner, the Board of Review or the Courts

WHAT IS THE ROLE OF THE DEPARTMENT?

1.

The Department is not responsible for the registration of charities. However, subject to certain limitations, charitable institutions or trusts of a public character are exempt from tax under section 88 of the Inland Revenue Ordinance. Charities wishing to enjoy the tax exemption may apply to the Department.





WHAT IS A CHARITY?

2.


Charity is not equivalent to "voluntary" or "non-profit-making" organisation

Not all "Voluntary" or so-called "non-profit-making" organisations are charities, however worthy their causes may be. In fact, there is no provision in the Inland Revenue Ordinance which exempts a "voluntary" or "non-profit-making" organisation from tax.

3.


Charity must be established exclusively for charitable purposes

Generally speaking, for an institution or a trust to be a charity, it must be established for purposes which are exclusively charitable according to law. The law defining the legal attributes of a charity is based upon case law developed through court decisions.

4.


Charitable purposes are classified into four heads

For practical purposes, the judgement of Lord MacNaghten in the case of I T Special Commissioners v Pemsel (3 TC 95) is regarded as an authoritative summary of the purposes that may be accepted as charitable. These are: -

a.
relief of poverty;
b.
advancement of education;
c.
advancement of religion; and
d.


other purposes of a charitable nature beneficial to the community not falling under any of the preceding heads.

While the purposes under the first three heads may be in relation to activities carried on in any part of the world, those under head (d) will only be regarded as charitable if they are of benefit to the Hong Kong community.

5.


Charity must be established for public benefit

A purpose is not charitable unless it is directed to the public or a sufficient section of it. An institution cannot generally be charitable if it is in principle established for the benefit of specific individuals. It is, however, not possible to lay down any precise definition of what constitutes a sufficient section of the public. Each case must be considered on its own merit.

6.


Examples of purposes held by the court to be charitable and non-charitable purposes are given in the lists shown at Appendix A.


HOW IS A CHARITY SET UP?


7.




Charity should have a governing instrument

It is essential that a charity is established by a written governing instrument. The type of instrument adopted will depend on the particular circumstances pertaining to the charity proposed and the preference of the promoters or founders. Persons who are considering starting a charity are advised to seek legal advice about the format, content and legal sufficiency of the charity's governing instrument. Before seeking advice, persons founding a charity must be clear in their own minds as to the purposes of the charity and the manner in which they wish the charity to be administered. Briefly the most common types of structures are:-

a.
a trust;
b.
a society established under the Societies Ordinance (Cap 151);
c.
a company incorporated under the Companies Ordinance (Cap 32); and
d.


a statutory body established by the Hong Kong legislature.

In exceptional circumstances, granting tax exemption to some ad hoc committees established for charitable purposes may be possible. Though preparation of governing instrument is strictly not required for a committee of this nature, minutes of the meeting establishing such committee must be ready for inspection.

8.


Only charities under the jurisdiction of Hong Kong courts qualify for exemption

Following the principle applied in Camille and Henry Dreyfus Foundation Inc v CIR (36 TC 126), tax exemption will only be given to charities subject to the jurisdiction of the courts in Hong Kong, that is to say, charities established in Hong Kong or Hong Kong establishment of overseas charities such as those deemed to be established in Hong Kong under section 4 of the Societies Ordinance or registered under Part XI of the Companies Ordinance.

9.


Clauses that the governing instrument of a charity should generally contain include:-

a.


clauses stating precisely and clearly its objects (This also applies to companies incorporated under the Companies Ordinance on and after 10 February 1997 and not required to state their objects in their Memoranda of Association);
b.


clause limiting the application of its funds towards the attainment of its stated objects;
c.


clause prohibiting distribution of its incomes and properties amongst its members;
d.


clause prohibiting members of its governing body (e.g. directors, trustees, etc) from receiving remuneration;
e.


clause specifying how the assets should be dealt with upon its dissolution (The remaining assets should normally be donated to other charities);
f.


clause requiring the keeping of sufficient records of income and expenditure (including donation receipts), proper accounting books and compilation of annual financial statements; and
g.


clause excluding the powers set forth in the Seventh Schedule to the Companies Ordinance (in case the charity is a company incorporated under such Ordinance).


WHAT ARE THE TAX ADVANTAGES AVAILABLE TO CHARITIES?

10.

A summary of the tax advantages accorded to charities, in so far as ordinances administered by the Commissioner of Inland Revenue are involved, is as follows:-

a.
Inland Revenue Ordinance

i.


Section 88 provides that charitable institutions or trusts of a public character are exempt from tax under the Inland Revenue Ordinance.
ii.


Proviso to section 88 states that for the purpose of Profits Tax, if a charitable institution or trust of a public character carries on a trade or business, the profits from such trade or business are exempted only if:-

1.


the profits are applied solely for charitable purposes, and
2.


the profits are not expended substantially outside Hong Kong, and
3.
either


(A)


the trade or business is exercised in the course of the actual carrying out of the expressed objects of the institution or trust (for example, a religious body might sell religious tracts);
or

(B)


the work in connection with the trade or business is mainly carried on by persons for whose benefit such institution or trust is established (for example, a society for the protection of the blind might arrange for the sale of handicraft work made by the blind).
iii.


For the purposes of Personal Assessment, Salaries Tax and Profits Tax and subject to certain limitations, a deduction is granted for donations of money to charitable institutions or trusts of a public character which are exempt from tax under section 88 or to the Government for charitable purposes.

b.



Stamp Duty Ordinance

Stamp duty under Head 1(1) or Head 2(3) shall not be chargeable on any conveyance of immovable property or any transfer of Hong Kong stock operating as a voluntary disposition inter vivos where the beneficial interest therein passes by way of gift from the person entitled to that interest, or from the registered owner, to or on trust for a charitable institution or trust of a public character. However, the instrument in question must still be submitted to the Collector for adjudication. It is not treated as duly stamped unless it has been stamped with a particular stamp denoting either that it is not chargeable with stamp duty or that it is duly stamped.

c.

Estate Duty Ordinance

i.


Gifts for the benefit in Hong Kong to any charitable institution or trust of a public character, or to Government for charitable purposes will not be deemed to be part of the dutiable estate.
ii.


Property bequeathed for the benefit in Hong Kong to any charitable institution or trust of a public character, or to Government for charitable purposes is allowed as a deduction.

The exclusion from the dutiable estate is applicable in respect of gifts and bequests received from donors dying before 11 February 2006.

d.



Business Registration Ordinance

Charitable, ecclesiastical or educational institutions of a public character are normally exempt from the obligation of business registration unless a trade or business is carried on. Where such an institution carries on a trade or business, the exemption will only be granted if the conditions set out in section 16(a) of the Business Registration Ordinance are satisfied. These conditions are similar to the conditions set out in the proviso to section 88 of the Inland Revenue Ordinance as explained in the sub-paragraph (a)ii. above.


WHAT IS A DONATION?

11.

The word "donation", in its ordinary sense, means a gift. To constitute a gift, the property transferred must be transferred voluntarily and not as a result of a contractual obligation to transfer it and no advantage of a material character is received by the transferor by way of return [see Sanford Yung - Tao Yung v Commissioner of Inland Revenue (HKTC 1081)].

12.


Persons administering charities should note that donors may be asked to produce receipts for donations in support of any claims they make for an allowance under the Inland Revenue Ordinance. It is therefore important to distinguish donations from other payments when issuing such receipts. Payments other than those which are strictly gifts, e.g. payments made for a grave space, services such as saying prayers, reservation of a space for ancestral worship, admission tickets for film shows, etc., should not be termed as donations. In borderline cases, it is suggested that the exact nature of the payment should be clearly stated on the receipt so that such transaction can be separately considered by the Department.

13.


Though a tax-exempted charity may state on its receipts that donations to it may be tax deductible, such statement must be crossed out when receipts other than donations in the true sense are acknowledged.


HOW TO CHECK WHETHER AN ORGANISATION IS A CHARITY?

14.


A list of charitable institutions and trusts of a public character which are exempt from tax under section 88 of the Inland Revenue Ordinance is available on the Internet from:-
www.ird.gov.hk/eng/pdf/e_s88list_emb.pdf


HOW MAY A CHARITY OBTAIN TAX EXEMPTION STATUS?

15.


Any organisation wishing to seek exemption from tax as a charitable institution or trust of a public character should submit the following documents to the Department:-

a.
an application letter;
b.
if the organisation has been established:

i.


a copy of the relevant certificate of registration;
ii.


a certified true copy of the instrument and rules governing its activities, i.e. the Memorandum and Articles of Association in the case of a corporation, the Ordinance where the body has been established by statute, the Trust Deed in the case of a trust, or the Constitution in the case of a society;
iii.


a list of any activities which have been carried out in the past 12 months (or less, if appropriate), and a list of activities planned for the next 12 months;
iv.


a copy of its accounts for the last financial year (if the organisation has been established for 18 months or more).
c.
if the organisation has not yet been established:

i.


a draft of the instrument and rules governing its activities;
ii.


a list of the activities planned for the next 12 months from the date of establishment or date of application, where appropriate.

16.


The application should be sent to the Commissioner of Inland Revenue, G.P.O. Box 132, Hong Kong.



IS THE TAX EXEMPTION STATUS OF A CHARITY SUBJECT TO REVIEW?

17.


The Department will, from time to time, call for accounts, annual reports or other documents to review whether the institution's objects are still charitable and its activities are compatible with its objects. It is essential that a charity should maintain good management and good accounting practice. A practical guide on good governance is available on the Interent from:-

www.icac.org.hk/filemanager/en/Content_1031/fund_raising.pdf

18.


Charities are required to advise the Department of any:-

a.


establishment or cessation of subsidiary organisation;
b.


alteration of its governing instrument; or
c.


change of name or correspondence address.


HOW TO OBTAIN FURTHER INFORMATION?

19.


Further enquiries should be directed to the Assessor (Donations) on 2594 5300.



LAU MAK Yee-ming, Alice

Commissioner of Inland Revenue,

Collector of Stamp Revenue,

Estate Duty Commissioner.

October 2009
Our WEB page on the Internet: www.ird.gov.hk
Our E-mail address: taxinfo@ird.gov.hk

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Appendix A

EXAMPLES OF PURPOSES WHICH THE COURT HAD HELD TO BE CHARITABLE PURPOSES
a.
Relief of poor people;
b.
Relief of victims of a particular disaster;
c.
Relief of sickness;
d.
Relief of physically and mentally disabled;
e.
Establishment or maintenance of non-profit-making schools;
f.
Provision of scholarships;
g.
Diffusion of knowledge of particular academic subjects;
h.
Establishment or maintenance of a church;
i.


Establishment of religious institutions of a public character;
j.
Prevention of cruelty to animals;
k.


Protection and safeguarding of the environment or countryside.


EXAMPLES OF PURPOSES WHICH THE COURTS HAD HELD TO BE NON-CHARITABLE PURPOSES
a.
Attainment of a political object;
b.


Promotion of the benefits of the founders or subscribers;
c.


Provision of a playing field, recreation ground or scholarship fund for employees of a particular company or industry;
d.
Encouragement of a particular sport such as angling or cricket.