Not for profit (NFP) entities may take any number of corporate forms the most common being:

• Companies limited by guarantee.
• Non-distributing co-operatives.
• Incorporated associations.
• Entities incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI) with rules that prohibit the distribution of surpluses or profits to members.

NFPs must have a constitution or rules that prohibit the distribution of surpluses to members or shareholders.

The standard rules in a non-distributing co-operative provide:

Prohibition on the Distribution of Surplus

No part of the Surplus will be paid directly or indirectly by way of discount, rebate or otherwise by way of profit to the Members of the Co-operative.

“Surplus” for the purposes of this Rule means the excess of income over expenditure after making appropriate allowance for taxation expense, depreciation value of the property of the Co-operative and for future contingencies.

NFP Winding up Rule

If, on the winding up or dissolution of the Co-operative, there remains any property after satisfaction of all its debts and liabilities, this must not be paid to or distributed among the Members of the Co-operative but must be given or transferred to an entity or entities:

1. with objects similar to those of the Co-operative; and
2. whose constitution or rules prohibits the distribution of its property among its members;
3. chosen by the Members of the Go-operative at or before the dissolution or, in default, by a judge of the court with jurisdiction in the matter, and
4. which satisfies the relevant sections of the Income Tax Assessment Act.

Use of NFP Surpluses

NFPs must retain the entire surplus arising in any Financial Year of the business NFP to be applied solely towards the promotion of the objects of the NFP or for the provisioning for future debt.

Use of NFP Surpluses

It is a common misconception that all NFPs are exempt from tax.

Under the Income Tax Assessment Act 1997 (Cth) a not-for-profit organisation must pay tax on any ‘taxable income’, unless it qualifies for an exemption as a registered charity or is otherwise categorised as exempt. Registered charities are a type of exempt entity. Charities must be endorsed by the Australian Tax Office to be exempt from income tax. NFPs and charities cannot self-assess whether they are exempt.

Charities

All charities must be NFPs but not all NFPs are charities. Charities must be registered with the Australian Charities and Not for Profit Commission (ACNC).
One of the requirements of a charity is that the entity must have a “charitable purpose”. There are four heads of charitable purpose:

•  relief of poverty;
• the advancement of education;
• the advancement of religion;
• other purposes beneficial to the community not falling under any of the preceding heads.

These purposes were further clarified under s 12(1) of the Charities Act 2013, to be defined to mean any of the following:

• the purpose of advancing health;
• the purpose of advancing education;
• the purpose of advancing social or public welfare;
• the purpose of advancing religion;
• the purpose of advancing culture;
• the purpose of promoting reconciliation, mutual respect and tolerance between groups of individuals that are in Australia;
• the purpose of promoting or protecting human rights;
• the purpose of advancing the security or safety of Australia or the Australian public;
• the purpose of preventing or relieving the suffering of animals;
• the purpose of advancing the natural environment;
• any other purpose beneficial to the general public that may reasonably be regarded as analogous to, or within the spirit of, any of the purposes mentioned in paragraphs (a) to (j);
• the purpose of promoting or opposing a change to any matter established by law, policy or practice in the Commonwealth, a State, a Territory or another country, if:
• in the case of promoting a change — the change is in furtherance or in aid of one or more of the purposes mentioned in paragraphs (a) to (k); or
• in the case of opposing a change — the change is in opposition to, or in hindrance of, one or more of the purposes mentioned in those paragraphs.

Indigenous Charities

The Income Tax Assessment Act 1997 makes special provisions for the tax treatment of native title and mining payments.

Th Charities Act also relaxes the limitation in the public benefit test to some extent to allow beneficiaries of an Indigenous Charity to be family or clan members.
The ACNC Commissioner has released an Interpretation Statement on Indigenous Charities that recognises the unique situation of Australia’s Indigenous peoples and recognises their disadvantage.

For the purpose of eligibility for registration as a charity under s 25-5 of the Australian Charities and Not-for-profits Commission Act 2012 (ACNC Act), an organisation with the purpose of addressing Indigenous disadvantage is accepted as coming within the first head of charity: relief of poverty or impotence, depending on the circumstances and may possibly be included under the category of advancing social or public welfare.

The ACNC Commissioner has published a number of informative Interpretation Statements and these Statements are invaluable source of information on charities.

Deductible Gift Recipient (DGR) status

Division 30 of the Income Tax Assessment Act 1997 contains the requirements for entities to be eligible to receive gifts that are tax deductible by the donor. Subdivision 30-A of the Income Tax Assessment Act 1997, contains a table of all eligible deductible gift recipients.

Not all charities are eligible for DGR status. To obtain DGR status entities must fall within an endorsement category and be endorsed by the ATO as having DGR status or must be listed by name as having DGR status in the Income Tax Assessment Act 1997.

Extensive information about the eligibility criteria for DGR status is available on the ATO website.

Mattila Advisory articles are intended to provide general information. They should not be relied upon as legal advice. We recommend you contact the Australian Charities and Not for Profits Commission for more detailed information about your specific organisation 

https://www.acnc.gov.au

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The post CATSI CORPORATIONS SIMILAR TO CO-OPERATIVES? appeared first on mattila.net.au.

WHAT IS THE PURPOSE OF CATSI?

The Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI) allows for a suitable form of incorporation under Commonwealth law for Aboriginal and Torres Strait Islander Corporations. The Corporations Act 2001 is not a suitable structure for these types of entities as it is not designed specifically to assist a narrowly defined group of members.

HOW ARE CATSI CORPORATIONS SIMILAR TO CO-OPERATIVES?

CATSI Act is almost identical to the State based Co-operatives legislation in that CATSI Corporations like co-operatives:

• Are Membership based corporations;
• Have similar format to Co-operatives in relation to their Constitution in that it cannot simply be adopted like a company constitution, but specific provisions must be considered and completed before the CATSI Corporation can be registered for example Objects, Powers and Membership requirements.
• Must have at least one or more Objects there are lots of possibilities, but some examples are:
  • medical services;
  • child care;
  • education or educational scholarships;
  • the management of mining royalties;

to a particular Aboriginal or Torres Strait Islander group, or in a particular region;

• have Powers subject to the Act and those powers may be restricted;
• Voting is democratic at meetings of Members that is one member one vote;
• Can refuse membership to people who do not meet the membership requirements under their Constitution;
• Keep a membership register note that the membership register must specify whether each member is indigenous or non-indigenous if the Constitution provides for non-indigenous people to be members;
• Is subject to supervision by the Registrar of Indigenous Corporations appointed under the Corporations Aboriginal and Torres Strait Islander Act not the Australian Securities and Investment Commission (ASIC);
• May be a not for profit that is it does not distribute surplus funds (profits) to members or a business that distributes surpluses to members. The CATSI Corporation’s Constitution must specify whether it is a not for profit or a business;
• Has dispute resolution provisions in the CATSI Corporation’s Constitution.

HOW ARE CATSI CORPORATIONS SIMILAR TO COMPANIES AND CO-OPERATIVES?

• Directors are elected by the Members at a Members General Meeting. The CATSI Act provides there must be no less than 2 and no more than 12 directors;
• Directors must work in the best interests of the CATSI Corporation (and not their own or their families own personal best interest);
• Directors must disclose to the CATSI Corporation if they have personal interests that may conflict with their obligation to act in the best interests of the CATSI Corporation and their conflict must be written into the records of the CATSI Corporation;
• Directors are not paid unless they are employees, but expenses may be paid on their behalf when travelling on CATSI Corporation business;
• The board of directors must meet on a regular basis usually no less than 4 times per year;
• The annual General Meeting of Members must be held no later than 5 months after the end of the financial year;
• Financial records and reporting must meet the Australian Accounting Standards;
• CATSI Corporations may be designated small or large for accounting purposes with differing requirements particularly in relation to audit requirements;
• If the CATSI Corporation is a not for profit on winding up all surplus funds must be transferred to another not for profit CATSI Corporation with similar objects for example to another medical service or child-care provider.

Mattila Advisory articles are intended to provide general information. They should not be relied upon as legal advice.

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Many agribusiness entities and all irrigation water supply entities in Australia, both government and privately owned, have at least one director who has day to day commercial dealings with the entity,so it is important to consider how these entitiesboth identify and deal with conflicts of interest in their decision-making process.

Why are director’s duties about conflict of interest morerelevant to irrigation supply entities than other entities in different industries?

One of the main difficulties for agribusiness and irrigation water supply entities when making decisions is dealing with the conflicts of interest that arise at board level. As many directors are also purchasers or suppliers,most of decisions they make will affect them personally. In addition, the geographical footprint of supply entities is relatively small and members are extremely conscious of who is affected by board decisions.

1. What is a conflict of interest?
   Many people refer to sections 191 through 196 of the Corporations Act 2001 (Cth)or the relevant provisions in each state and territory’s co-operative’s legislation. However, you need to look to the common law to find the true scope of the principle and, from that, the extent of the duty.Essentially, a conflict of interest is a set of circumstances that creates a risk that professional judgement or actions regarding a primary interest will be unduly influenced by a secondary interest.
2. What if all irrigator directors are conflicted?
   A conflict of interest can also arise where a director is asked to consider a decision with a negative impact for members, e.g. adopting or amending the pricing structure for supply to members. The decision to increase prices affects all irrigator directors equally. The directors in this scenario are still conflicted and would need to record the conflict. In most decisions relating to revenue the directors will face similar although perhaps not so obvious conflicts when balancing the financial stability of the entity against the viability of each member’s business.
   
3. Duty not to make a secret profit or gain (the so-called profit rule)
   The real issue for directors is to identify a conflict or potential conflict and disclose the issue early so as to not breach the “profit rule”.The general rule is that a director may not use their position to gain a profit or advantage for themselves, nor may they obtain a benefit by entering into a transaction in conflict with their fiduciary duties, without the informed consent of the person to whom they owe the duty. With reference to our earlier example, each of the directors would need to disclose their interest so as to not run foul of the offence provisions in the Corporations Act 2001(Cth).

   The Courts have explained this duty in the following manner:

   1. A director is under an obligation not to promote his personal interests by making or pursuing a gain in circumstances where there is a conflict or a real or substantial possibility of a conflict between his personal interests and those of the company.:
   2. In order tosee whether there is a possibility of conflict you need to adopt an objective test of a reasonable person looking at the relevant facts and circumstances of the particular case.
   3. A director may act with a personal interest even though the director has not freed his or her mind of that personal interest when acting provided that his or her personal interest was not the actuating motive rather than some good faith concern for the benefit of the company as a whole or for fairness as between members.
   4. Mere disclosure of a conflict of interest and abstaining from voting is insufficient to satisfy the director’s fiduciary duty where the director is in a position of power and influence over the board. In such a situation the director is under a positive duty to take steps to protect the company’s interests, for e.g. using such power and influence to stop the transaction from going ahead.
   5. What action beyond mere disclosure depends on how involved the director is in the transaction and the seriousness of possible outcomes for the company.
   6. A director of a company who is also a director of another company must not exercise his powers for the benefit or gain of the second company without clearly disclosing the second company’s interest to the first company and obtaining its consent.
   7. The fact that the profit was made in good faith does not matter.

 

The lesson is:  identify the conflict and disclose the conflict early.

4. Do we all have a conflict or isthe conflict of one or more directors greater than another?
   It goes without saying that a director on any board has a direct interest in the outcome of decisions made by thatboard. But at what point does the direct interest in a positive or negative outcome become a conflict of interest? And following on from that, does it really matter if a director receives a personal benefit when acting in the best interests of the entity?A common example for irrigation supply entities occurs when the board is asked to consider upgrading an existing item of infrastructure such as a major channel. For the purposes of this example we can assume the upgrade is required because of both the age of the asset and the requirement for further transmission capacity within the scheme. Among the many benefits the upgrade will provide to members, a substantial or significant personal benefit will be derived by one of the directors. We can also assume that the personal benefit derived will exceed that received by other directors and members. That said, all directors and members will receive some benefit from the upgrade.In this scenario all of irrigator directors have a conflict of interest but one director stands to gain more than the other directors or most of the members. The director is more conflicted because the director stands to personally profit or gain from the upgrademore than the others and this could affect their decision. There is no “threshold” or “minimum level” at which a conflict of interest arises; the mere fact a personal benefit is derived is enough.So, for the purposes of the example the director who stands to derive a substantial personal benefit has a greater conflict of interest than the others. All directors with a conflict must declare this and have it recorded in the board minutes and the separate book of conflicts of interest. The director with the greater conflict should refrain from voting, however, the other directors whose conflict is no greater than the members may vote.
5. The duty to avoid a conflict of interest (the conflict rule)
   Not every conflict of interest can be avoided but each director has a duty to avoid making decisions where a conflict or potential conflict exists. In Hospital Products Case (1984), Mason J stated: “The Fiduciary (in our case a director) is under an obligation not to promote his personal interests by making or pursuing a gain in circumstances in which there is a conflict or a real or substantial possibility of a conflict between his personal interests and those of the person whom he is bound to protect.”A director may not be able to avoid a conflict of interest, but they can act in a manner that will minimise the opportunity for a claim to be brought against them for a breach if they comply with their obligations under the Corporations Act 2001 (Cth), the relevant state and territory’s co-operatives legislation and/or the wider obligation under Justice Santow’s points above.Each director must initially disclose the conflict or potential conflict of interest to the other directors so that the interest can be recorded. Once recorded, a practical measure for avoiding a breach of the duty is to step outside of the boardroom for the discussion and vote. The director can then be invited to rejoin the meeting following the vote.
6. How can we make decisions if we are all conflicted?
   There is a general principle that says if every director is equally conflicted and the change would similarly affect all shareholder members then all directors can vote. The principle is the same for government owned companies where all directors are equally conflicted.At some point, common sense must prevail, but it is essential that each director record the nature and degree of conflict before voting. The board must satisfy themselves that no one director has a greater conflict than the others. In this respect, the directors must consider the potential gains, or limited losses each director may receive or incur due to their participation in the discussion surrounding the motion, and secondly, in casting their vote.This scenario is very common in water supply entities where all directors are irrigators.
7. What happens if we make decisions while conflicted?
   In simple terms both civil and criminal actions may be brought against a director where they breach their duty. From a civil point of view, the company would be entitled to seek damages or equitable relief from the director.A director cannot be permitted to retain a profit or benefit that he or she has obtained by reason of a breach of duty. Where it is established to the satisfaction of a Court that a breach has occurred, then that director is liable to account for the profit or benefit obtained.The prevailing view of the courts is that director holds the profit or benefit obtained as a constructive trustee for the entity until it is restored. That said, you cannot punish a director for misconduct under equity by making him or her account for more than he or she actually received as a result of the breach.Where a director has mixed the profit with his own property, the whole will be treated as trust property unless the director can adequately account for the personal component.

   In summary, a director may be required to:

   1. Account to the company for any profits made.
   2. Pay damages and compensate the company.
   3. Comply with terms of any injunction.
   4. Comply with a declaration made by the court.
   5. Restore property to the company; and or
   6. Hold property as constructive trustee for the company.

From a criminal standpoint the penalties range from a term of imprisonment and or fines of up to 2000 penalty units which currently equates to $340,000.00 per offence under the Corporations Act 2001 (Cth) and similar fines under the respective co-operatives legislation.

8. What to do next?
   The difficulty for agribusiness and irrigation water supply entities directors is identifying real and potential conflicts of interest before making decisions. All directors have a duty in this respect and should approach each decision with caution. It is always best to disclose a conflict or potential conflict in advance, have it recorded in the minutes and abstain from voting.

If you need assistance or want to discuss your obligations simply call

Mattila Advisory

02 9252 7177.

The post WHEN DIRECTORS HAVE DAY TO DAY COMMERCIAL DEALINGS WITH AN ENTITY: DEALING WITH DIRECTOR’S CONFLICT OF INTEREST appeared first on mattila.net.au.

1. RULES AND RESOLUTIONS
   Have you updated your rules or are any other special resolutions proposed for the AGM?
2. DEADLINE NOTIFICATION
   Have you notified members of their right to nominate for position of Director. Has the closing deadline been established to send proxy forms and Notices, with time to complete the paperwork well before the AGM Notice period?
3. MEMBERS REGISTER
   Is your Members Register up to date have you separated active and inactive members? Have you determined who is eligible to vote?
4. DOCUMENT MANAGEMENT
   Are all the documents for the AGM finished?
5. PROXIES
   Are all the proxy forms ready? Has the closing date for lodgement of proxies been set?
6. NOTICE REQUIREMENTS
   Have you prepared the Notice? Does it include all relevant information including any resolutions?
7. DIRECTOR ELECTIONS
   How are directors to be elected? Is the ballot paper ready? What are your requirements?
   Is the election to be held by:
   1. Postal ballot
   2. At the AGM by ballot paper
   3. At the AGM on a show of hands?
8. NOTICE PERIODS
   1. Special Resolutions – 21 Days Notice PLUS the additional postal rule period
   2. No special Resolutions – 14 Days Notice PLUS the additional postal rule period
9. AGM NOTICE
   How is the AGM Notice to be sent to members?
   1. Mail out
   2. Website
   3. Is a notice in the newspaper also required?
10. ON THE DAY
    On the day who can vote? Check each person against the up-to-date Members Register. Do you have the voting cards and if necessary the ballot papers ready?
11. REGULATORY REQUIREMENTS
    Have you met your regulatory requirements and lodged the relevant documents with the Registrar?

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The main choices of organisational structures for not for profit organisations are:

• Incorporated associations ( for small scale organisations),
• Non-distributing co-operatives (suitable for any size of entity);
• Mutuals ( usually a specialised form of co-operative);
• Companies limited by Guarantee ( for medium to large size organisations);
• Trusts

It should be noted that the trustees of a trust are appointed by a settler. Trustees are not elected and there are no annual general meetings.

Incorporated associations are only suitable for small organisations with limited turnover. If incorporated associations become too large they will, under normal circumstances, be forced to convert to a company limited by guarantee or a co-operative.

Common Mistakes

Not for Profits and Tax

Just because you are a not for profit does not automatically mean you are exempt from tax. Not for profit exemptions are set out in the Income Tax Assessment Act. It is necessary to be sure whether or not any of the income tax exemptions apply to your organisation. 

Mutuals

Many organisations describe themselves as “mutuals”. An organisation is only a mutual if it complies with the principles of mutuality. Mattila Advisory has specialist experience in establishing mutuals that comply with the principles of mutuality.

Call Mattila Advisory if you need any further information on how we can assist you in establishing a not for profit in Australia.

The post Best practice in establishing a Not for Profit in Australia appeared first on mattila.net.au.

In forming a cooperative in Australia you must have:

• A minimum of 5 potential members;
• A minimum of 3 member directors;
• Draft Rules; and a
• Draft Disclosure Statement

Prior to forming a cooperative the draft Rules and draft Disclosure Statement must be approved by the Registrar of Cooperatives in your State or Territory. The Registry will not draft your Rules or Disclosure statement for you. These documents are specific to your cooperative.

The purpose of cooperatives is to buy or sell goods or services to members at the best price. Examples are the best price for the provision of disability support services or agricultural cooperatives to market farmer’s produce.

Unlike companies there are no third party shareholders making profits from cooperative members. Cooperatives cut out the additional layer of costs incurred by third party profits paid to external shareholders.

Rules

In forming a cooperative in Australia you will require a set of Rules.  Rules are similar to the combination of a company constitution but Rules also incorporate some concepts from a company shareholder’s agreement.

The Rules are the “contract” between the co-operative and the member shareholders and the member/shareholders and one another.

The Rules are specific to your cooperative and must be approved by the Registry of Cooperatives as being compliant with the Cooperatives Act.  This is easier or harder depending on if you try to do it yourself or if we do it professionally for you.

Disclosure Statement

You will also need to lodge a Disclosure Statement for approval with the Registry of Cooperatives. The Disclosure Statement explains to proposed members the business of the cooperative and is usually based on the business plan if you have one.  Alternatively the types of issues you would address in a business plan are set out in the Disclosure Statement so that members can make an informed decision as to whether to join the co-operative.

The Disclosure Statement also serves an additional purpose of ensuring that the proposed directors have properly considered all the key questions that need to be answered before proceeding, in particular whether the proposed co-operative is financially viable.

Disclosure Statement – Due Diligence and Verification

To complete a Disclosure Statement it is necessary that a due diligence is performed and all statements are verified in a similar manner to a company prospectus.  Like a company prospectus the Directors are personally liable to member/shareholders for any false or misleading statements or omissions in the Disclosure Statement.  This is why it is necessary to do a due diligence and verification as part of the procedures for completing a Disclosure Statement– it’s for the protection of the directors and to ensure potential members are not misled.

Due to the detailed nature of the Disclosure Statement we have found over the last 20 years since the Disclosure Statement concept was introduced cooperatives have a significantly lower rate of financial failure than unlisted companies.

Cooperatives come in all shapes and sizes

Cooperatives can be very large like Cooperative Bulk Handling (CBH) with 4,200 grain grower members and an annual turnover of $2.7bn.

Cooperatives may be very small such as university student groups who bulk buy groceries so that members can obtain groceries at the lowest price.

Or they may be in-between such as cooperatives established by support workers or primary care givers to provide disability services to those in need.

Contact Mattila Advisory if you need any further information on how we can assist you to incorporate a co-operative.

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