Oonagh B. Breen

Regulating Charitable Solicitation Practices the Search for a Hybrid Solution

A review of four fundraising regulatory models currently in existence in common law jurisdictions reveals a mismatch between the stated policy goals that these models set out to achieve and the practical, albeit unintended, consequences that flow from the implementation of these models. The paper highlights some of these policy/implementation discords. It proposes a hybrid model, which is designed to resolve some of these inconsistencies, and considers the potential for the models practical application in one of the jurisdictions surveyed, Ireland.

Legal, Registration, and Taxation Issues of Associations

National and state/province laws regulate Membership Associations (MAs) and other nonprofit organizations (NPOs) in contemporary nations, although this is a very recent historical development (last century or two, usually). Legal treatment of MAs differs in civil law versus common law systems. In common law countries, MAs have much more freedom to form and operate, compared to civil law regimes, where the government seeks to control all NPOs. In either type of regime, Public Benefit Organizations (PBOs), seeking to foster the general welfare, usually receive special legal, registration/incorporation, and tax treatment, often including exemption from income taxes on net revenues. This chapter reviews the global legal situation of MAs regarding registration or incorporation as a Legal Person, freedom of and barriers to MA formation, obtaining public charity status, transparency, accountability, and dissolution.

Regulatory Waves: Comparative Perspectives on State Regulation and Self-Regulation Policies in the Nonprofit Sector

This proposal is for the second of two interlinked panels (Regulatory Waves 1 & 2: each with 4 papers) which, as a whole, will provide a multi-country analysis of the drivers for and relationships between statutory and non-statutory intervention in nonprofit regulatory frameworks. These Panels come out of a project conceived at ISTR’s Siena conference in 2012 and which seeks to fill a gap in existing comparative nonprofit regulatory literature. Both Panels seek to test a thesis of whether regulatory intervention in the nonprofit sector occurs in ‘waves’, alternating between state regulation and self-regulatory initiatives. Two Panels are required to allow a diverse range of country approaches, contexts and perspectives to be analyzed and so provide comparative sampling of a significant empirical base. Country approaches include Canada, China, England and Wales, Ireland, Israel, Mexico, USA. These two Panels will complement other papers on legal and regulatory themes that will be presented at the 2014 ISTR International Conference and will help towards providing an extensive picture of current, emerging and developing trends in legal and governance frameworks for nonprofit organizations across many countries and regions.

Giving in Ireland: A Nation of Givers in a Largely Unregulated Arena

Ireland has a long history of philanthropy, rooted in a strong religious tradition. In the late 1700s, Protestant philanthropy helped to alleviate the physical and medical needs of the impoverished working classes (Kelly & Powell, 2010). Beginning in 1770, the incremental waning of the Penal laws1 enabled the growth of Catholic charities (Raughter, 1997). Following Catholic emancipation in 1829, greater Catholic clergy involvement in charitable activity emerged with religious involvement in philanthropy becoming more formalized in Irish society. The introduction of the Poor Laws to Ireland in 1838, which brought into existence a statutory relief system for the destitute, however, led to a fall off in charitable donations and resulted in some charities ceasing to operate thereafter (Cousins, 2008). The Irish famine in the 1840s had a further chilling effect on charitable institutions. Nevertheless, given the Poor Laws’ strict eligibility requirements for receiving relief, religious orders once more found their way to the forefront of philanthropy, providing voluntary hospitals and assisting those in need (Donoghue, Prizeman, O’Regan, & Noel, 2006).

In Search of Terre Firma: The Unpacking of Charitable Foundations in Ireland

This chapter reviews the evolution of charitable foundations in Ireland and assesses the challenges facing the foundation sector from a financial, regulatory and governance perspective. As one of only two common law jurisdictions in the European Union, Ireland differs from its continental counterparts in its facilitation of and familiarity with foundations. Establishing or calling one’s entity a ‘foundation’ does not imbue the entity with a specific legal status in Ireland, thus requiring would-be foundations established in Ireland to use an existing legal form (typically a trust or company limited by guarantee) as the basis for the entity. This lack of separate legal status is reflected not only at the point of creation but throughout a foundation’s existence since no separate laws or regulations governing foundations exist in Ireland. Rather, such entities are governed by the appropriate charity, tax, company or trust law or, most often, a combination of these regimes. In light of these elements, this chapter sets out the regulatory framework that applies to charitable foundations in Ireland, examines recent moves to better support foundation growth in Ireland and looks at the challenges that stand in the way of such further evolution.

The European Foundation Statute Proposal: Striking the Balance between Supervising and Supporting European Philanthropy?

Abstract This article examines the Commission’s Proposal for a Council Regulation on the Statute for a European Foundation (Fundatio Europaea). Focusing on the proposed transparency and accountability provisions, it interrogates whether these provisions are sufficiently robust to facilitate effective Member State supervision of this proposed new supranational legal form, given identified weaknesses in existing Member State foundation regulatory regimes. Consideration is also given to the Statute’s proposed reporting and auditing mechanisms. Particular attention is paid to the challenges inherent in standardising financial reporting standards and the missed opportunities to introduce best practice in the draft Regulation. The article concludes by identifying a number of interpretative loopholes in the existing proposal, which if adopted in its current format, would weaken the potential for an effective, efficient and feasible solution to the problems currently experienced by many foundations operating on a cross-border basis in Europe.