User:Eteb3/ideas/Irish CLG
One option for migrating the OSMF to the EU would be to register as a company limited by guarantee in Ireland.
Advantages
- Irish companies law is very similar to UK law.[1] OSMF is currently a company limited by guarantee in the UK. So the 'feel' of OSMF and how it operates would change very little.
- Many law firms have cross-border expertise, to assist with the transfer.
- This includes expertise in the interaction of UK and EU law.
- English is the international language, so domicile in an English-speaking country makes it easy for members to read and understand laws and regulations governing the foundation.
Disadvantages
- As in the UK, OSMF in Ireland would be liable to corporation tax - unless it was a charity.
Being a charity
Advantages
Taxation [stub]
Disadvantages
Regulation [stub]
To be or not to be a charity?
In Irish law, as in other commmon law jurisdictions, to be a charity is a question of law (not a question of registration).
In other words, it's possible for an organisation to be a charity and not realise this - and to become a charity even though the org doesn't want to be a charity. (For example, because it doesn't want the regulatory burden, and constraint on freedom, that comes with that status.)
So it's possible the Irish courts or tax authorities could find that OSMF is a charity. [2]
If OSMF didn't want to be a charity, it could prevent this by permitting profits to be distributed to its members. Section 2 of the Charities Act 2009 defines a charity as an organisation with a constitution that---
- requires "all" of its property to be applied "for the benefit of the community" (s. 3), and where
- "none of the property [can be paid] to the members of the body".
(Emphasis added.)
OSMF could admit the local chapter organisations as members, which could form a class of member separate from the individual members. These local-chapter members could be entitled to a distribution of, say 5% of the profits annually, if the directors recommend this, and if the general meeting confirms it.
There appears to be no need for such a payment ever to be made: the possibility in the constitution is enough to prevent the organisation from being a charity. [3]
Footnotes
- ↑ The first substantial Irish legislation after independence was not until 1959, and that Act made few changes.
- ↑ This is the case in the UK, too. My own best judgement at the moment is that OSMF is, under UK law, a charity---a Pandora's box probably best left unopened.
- ↑ This interpretation would be consistent with, and probably follows, the English case of The Abbey, Malvern Wells, [1951] 2 All E.R. 15. As far as I know the case was good law in Ireland until the 2009 Act.