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Incorporation FAQs

Published: 24/05/2017
Updated: 09/08/2017

 

No. Incorporation means your charity becomes a new legal entity. Scottish charity law prevents us from entering two charities on the Scottish Charity Register with the same name. This means you have to have a new charity number and a new name. 

If you don’t want to change the name significantly you could add the ‘year’, ‘SCIO’ or ‘Limited’ (if you’re changing to a company) to the end of the old charity name.

For example: ‘Save the Porpoise’ becomes ‘Save the Porpoise SCIO’. 

Once the old charity has been removed from the Scottish Charity Register you could apply to OSCR to change the name of the new charity back to that of the old charity.

Yes. Our guidance on Publicising that you are a charity sets out the details that you must provide and where you must provide them. This is a legal requirement for all charities. 

If the new charity is a SCIO, you must have the details on your external documents as soon as possible after the new charity is registered. However, OSCR will be proportionate with charities using up old stationery.

If you are a company you will need display your company details too. 

 

How long it takes will depend on a number of factors, including: 

  • How much preparation you have done.
  • What other organisations you have relationships with or are regulated by.
  • The types of assets you need to transfer.
  • The complexity of your application for the new charity and your application to wind up the old charity.
  • Membership requirements and agreements set out in your governing document.
  • Staff and pensions.

The experience of many charities is that the application and wind up process takes between 9 and 12 months, with additional time for other organisations that may be involved.

If you are an unincorporated organisation (not a charity) applying to become a SCIO, many of the issues highlighted in this guide, such as transferring assets, staff considerations and funding will apply to you. You need to understand that there may be a lot of work you need to do before you’re ready to apply to OSCR to become a charity. Contact one of the organisations listed in Sources of help and advice.

You might need to contact one or more of these organisations: 

  • Funding organisations
  • Local authority
  • HMRC
  • Disclosure Scotland
  • Information Commissioner’s Office - UK
  • Other Regulators like the Care Inspectorate
  • Bank
  • Insurance company
  • Pension’s provider. 

There may also be other organisations you need to contact about incorporating. See the factsheets which accompany this guide.   

See the Incorporation to SCIO: Accounts Factsheet for information on what type of accounts to prepare. If changing to a company you need to follow the accounting requirements for company law.   

You may decide to seek professional advice to inform your decision on incorporation or more generally to support the charity during the process. Contact one of the organisations listed in Sources of help and advice. 

You may also need professional advice about the transfer of property or leases. We strongly suggest you get professional advice if you operate a pension scheme and/or have: 

  • Property – land and buildings
  • investments
  • leases
  • contractual agreements.

Before you apply to wind up the old charity, you need to check what the governing document says about how you need to go about it. You will usually find this in the ‘dissolution clause’. 

If the governing document does not say anything about winding up you may still be able to do this, or you may need to change your governing document or re-organise the old charity to allow it to be wound up. If the governing document does not say anything about winding up you will need advice. Contact one of the organisations listed in Sources of help and advice.

If your charity wants to incorporate to become a company, you will need to provide us with draft articles of association when applying for charitable status for the new charity. We can only issue an ‘in principle’ decision on the application at first.

The next step is to incorporate the company at Companies House. After the new company has been registered at Companies House, you will need to tell us and send copies of the Certificate of Incorporation and the final articles of association. Then we can confirm charitable status and issue a new charity number.

Village Halls looking to incorporate should take professional advice first. We have found that the governing documents of these charities can present certain difficulties.  

Many of the village halls on the Register are trusts, and we are aware that a lot are considering incorporation. For some of these, their trust deeds won’t give charity trustees the power to wind up and transfer the assets. For others where there is the power we have found that it does not permit the transfer of the hall to another charity. See our technical guidance on Village Halls for charity advisers for more information.

There may be a range of reasons why a charity may change its mind and decide to withdraw from the incorporation process. If this happens, you should inform us immediately and we can either cancel any application for charitable status or advise you how to wind up the new charity. 

If you are having major problems with the incorporation process that threaten to have a significant impact on the charity or its assets, you may want to consider raising this with us as a Notifiable event.

Charities who are registered with the Care Inspectorate (CI) who wish to become SCIOs will have to apply for a new (CI) registration. See the Care Inspectorate Factsheet for more details. 

Full application details can be found on the Care Inspectorate website. In the case of SCIO’s, the Care Inspectorate registration can only be completed once the new charity has been registered by OSCR.

You may decide not to wind up or dissolve the old charity but instead keep it in existence as a ‘legacy’ charity. The purpose of these charities is usually to receive legacies, for example money left in a Will and pass them to the new charity. 

If so, you should make OSCR aware of your intention in the status application form for the new charity. If you leave the old charity as a legacy charity it will still need to meet all the requirements of being a charity. In particular the old charity will: 

  • Still need to meet the charity test.
  • Still need to have charity trustees who comply with all the charity trustee duties.
  • Still have to comply with annual monitoring: preparing and submitting accounts, trustees’ annual report and the Online annual return. 

The legacy charity should consider if its governing document needs to be changed. The purposes and powers of the old charity will reflect what it was originally set up to achieve – for instance they may not cover transferring legacy funds to the new charity, and may need to be changed. Other aspects of the governing document may also need to be amended if they no longer fit the new role of the legacy charity, for example the provisions about membership and the holding of meetings.

To make changes to the charity’s purposes you will need our prior consent. Other changes should be made in line with the requirements of your charity’s current governing document and then notified to OSCR. See our guidance on changing charitable purposes for more information.

You may need to obtain a new VAT registration for your SCIO, and you may wish to seek professional advice particularly if any interests in property are to be transferred to it.

If you operate gift aid you will need to register the new charity for gift aid and cancel your previous registration – HMRC will be able to assist with this. 

You will need to apply to HMRC for any tax exemptions you currently receive. Tax relief is not an automatic part of being a charity and HMRC will need to assess a new application for tax relief from the new charity. See the Tax matters Factsheet for more information.


Yes, you’re creating a new charity so you will need to re-register. See our FAQs for more information on the scheme. Full information is available on the Scottish Government website.



 

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