Where charity assets are surplus to immediate need, trustees are right to consider investment. Trustees who engage a competent UK investment manager on a discretionary basis can be confident that all investments will be appropriate ones for a charity to make. But those trustee bodies that make investments directly have a number of charity law and tax matters to consider. Among these, trustees must ensure that they are only making “approved charitable investments”.

If they do not, the charity’s entitlement to tax relief on its income/gains will be restricted to the extent of such “non-charitable expenditure”.  Despite this serious consequence, the matter often seems to be an afterthought. Perhaps one reason is the fact that many charities are cautious in their investment approach and tend to stick to categories of investment that are clearly approved, such as land and listed securities. Equally likely is the existence in the legislation of a very broad residual “sweep up” category of investment – Type 12 – which permits as approved, “any loan or other investment made for the benefit of the charity and not for the avoidance of tax (whether by the charity or any other person)”.

Published cases on Type 12 investments are extremely rare so the decision of the first-tier tax tribunal in Reb Moishe Foundation –v- HMRC [2020] UKFTT 0303 (TC) is of interest to anyone dealing with charity tax matters.

The key issue in this case was whether a particular loan was a Type 12 qualifying investment for the purposes of section 558 Income Taxes Act 2007.

According to the evidence, the charity received donations totalling about £2.4m from a company that was run by persons connected to the charity (one of the trustees was also the secretary of the company, among other connections). The charity had planned to use the donated funds to pursue educational purposes by constructing schools abroad. However, the charity was not immediately in a position to begin these projects and the funds were therefore surplus to the charity’s immediate needs. The charity made an almost immediate loan of £2m back to the donor company, which was in the property finance business. The loan was to be a short term one, providing the charity with the prospect of a significant return, with the borrower business providing temporary property financing to third parties at high interest rates.

After the general administration of the charity had apparently gone badly awry (readers may recall the separate intervention by the Charity Commission), HMRC opened formal enquiries into a number of the charity’s past income tax returns. HMRC’s enquiry concluded that the loan arrangements did not meet the relevant conditions for tax relief and assessed the charity to UK income tax in the region of £240,000. The charity appealed against this assessment to the tribunal (after both an internal HMRC review and an attempt at alternative dispute resolution had produced no resolution).

HMRC had objected to the lending arrangements on the basis that the charity had loaned the money without undertaking sufficient due diligence into the investment opportunity, verifying the borrower’s general creditworthiness, or taking any independent professional advice (the charity claimed it had done but this was not recorded in meetings, etc).  Moreover, some elements of the arrangements seemed irregular by normal commercial standards, since for instance the charity did not seem to reconsider the loan when the initial interest rate proposed of 24% per annum was later reduced to just 10%.

The tribunal then considered two discrete issues: the quantification of any non-charitable expenditure on unapproved charitable investments; and the scope and meaning of the relevant statutory requirements for an eligible Type 12 charitable investment (including whether the tribunal’s jurisdiction was fully appellate or only supervisory in nature in a situation in which the applicable tax legislation referred to HMRC’s own level of “satisfaction”).

On the first matter, the tribunal ruled in favour of the taxpayer charity. HMRC had made two significant errors during their attempts to quantify levels of additional non-relievable expenditure occurring during the particular taxable periods under review. HMRC had tended to treat all additions to the overall outstanding loan balance as additional non-relievable loan amounts, whereas in fact some of the individual figures in the charity’s records represented accrued but unpaid interest rather than additional sums being made newly available by the lender to the borrower.  Furthermore, when identifying sums loaned by the charity HMRC had relied upon accounting information which had been compiled by reference to the end date of various calendar years, whereas the legislation clearly required any additions to such a balance to be quantified by reference to the changes in the outstanding value of the loan during the course of a particular UK income tax year. These errors required adjustment that was largely favourable to the charity.

On the second matter, the charity was unsuccessful.  The tribunal considered the statutory phrase “an officer of [HMRC] is satisfied … that [the loan] is made for the benefit of the [charity] and not for the avoidance of tax (whether by the [charity] or any other person).” The tribunal concluded, in the absence of any prior authority on this specific issue, that the statutory reference to an HMRC officer being “satisfied” with the situation meant that the tribunal’s jurisdiction was merely supervisory. This meant the HMRC officer’s decision had to be unreasonable for the tribunal to overturn it.

The tribunal considered that the relevant statutory language imposed two separate and cumulative tests for Type 12 investment eligibility: one relating to the existence of a benefit and the other relating to an absence of tax avoidance.

In relation to the first limb of the cumulative test, the tribunal considered that the loan was made for the benefit the charity. Had the 2008 financial crisis not occurred (which could not reasonably have been predicted) the charity stood to gain a significant return from the loan.  In relation to the second limb, the tribunal’s view was that the true reason for the arrangement had been to enable the borrower to benefit from dual UK tax deductions for the same amount, once by donating a sum to a charity and then in respect of tax-deductible borrowing costs. (At the time of the transaction, the “substantial donor” rules were not yet in force.)

Since in the tribunal’s view the second limb failed (there had been a tax avoidance purpose underlying the arrangements) it held that a properly informed HMRC officer would have been satisfied that the Type 12 requirements were not met. For that reason, there were no grounds for the tribunal to interfere with the HMRC case officer’s original decision as to his own state of satisfaction.

The HMRC officer seemed to have both considered certain irrelevant material and failed to consider certain relevant material, but the tribunal nonetheless concluded that the correct approach required it to dismiss the appeal and uphold HMRC’s basic conclusion that the loan was not an approved charitable investment for UK income tax purposes.

Since a circular donation and loan-back arrangement would have fallen afoul of the “substantial donor” rules had they been in force (and presumably also of the current Tainted Charity Donation rules) there is not much about circular transactions that can be usefully gleaned from this case. However, it does provide us with a rare illustration of the Type 12 test in action, as well as confirming the supervisory nature of the tribunal in these circumstances. In addition, it serves to remind trustees of the importance of record keeping in respect of investment decisions and advice – while the tribunal was satisfied in the end on the benefit point, key aspects of the trustees’ thinking and procedure were lacking. The case does also highlight a number of HMRC errors – always a good reminder that a case officer’s assessment is not sacrosanct and deserves proper scrutiny from taxpayer and adviser.

Alana Petraske, Withers LLP (with thanks to Adam Dolder of Withers LLP)