Back in 2010, the Canada Revenue Agency (CRA) released new charity guidance entitled Canadian Registered Charities Carrying out Activities Outside Canada.

As the title implies, it has to do with how organizations can legally allocate funding for charitable work outside of Canada, as organizations are prohibited from simply funnelling donor dollars from the Great White North to a foreign-operated charity or NGO, even if that organization shares the same mission and vision as the Canadian one.

A bad conduit

Charity lawyer Mark Blumberg tells CharityVillage® that the hardest thing he has to explain to clients and charities looking to broker deals with foreign entities is the distinction between what the CRA calls an illegal “conduit” transaction versus a “structured arrangement” of funding from Canada.

“Basically, it is illegal for a Canadian charity to forward money or other resources to an organization that is not considered a qualified donee under CRA rules,” Blumberg said. For the most part, any organization operating outside of Canada does not qualify as a registered donee as far as the CRA is concerned.

Acting as a conduit can have very serious consequences, such as de-registration of charitable status or a penalty equal to 105% of the monetary amount transferred from the Canadian charity to the foreign one. The precise details of penalties and rules can be found in the CRA guidance.

What is permissible, Blumberg said, is for a charity to use its funds to support a foreign project through an agency agreement, joint venture agreement or cooperative partnership agreement, as long as these agreements provide for direction and control of the use of funds or resources.

Take control

If a Canadian charity enters into a structured arrangement with a foreign charity or nonprofit, it better be sure to have an accurate paper trail and immaculate bookkeeping to account for all monies and resources sent.

Blumberg counsels that maintaining control of how one’s dollars and resources are being used abroad will go a long way to proving to the CRA that everything is above-board and that issuance of tax receipts to Canadian donors remains permissible.

Some of the ways Canadian charities can maintain direction and control over projects it has funded abroad include: ensuring that partner organizations have the capacity to do the particular job; maintenance of detailed project descriptions, so both parties stay on the same page on the application of funds or resources; maintaining direct and frequent contact with the foreign organization to monitor active projects; and determining whether any issues or concerns have arisen.

As for who should heed the CRA guidelines on this matter, Blumberg advises that, registered charities that conduct foreign activities; registered charities that work with intermediaries in Canada that are not qualified donees; and professional advisors, such as lawyers and accountants who advise charities, all should be fluent with these regulations.

“Canadian charities spend approximately $2.5 billion a year on international activities. If one took a literal interpretation of the Income Tax Act, which talks about a charity conducting its own activities abroad – Doctors Without Borders is a good example – a transfer of funds to foreign organizations, even if an agreement is in place is a bit of a stretch to say they are your own activities. But it’s a stretch the CRA allows,” Blumberg says.

He affirms that if the CRA restricted this practice, it would “obliterate” the whole foreign operating arena for Canadian charities. And as an aside, Blumberg believes that in terms of value per charitable dollar spent, foreign-based projects by charities is “the most important area, because the impact is so great. But that’s my bias.”

Restrictions? What restrictions?

Blumberg scoffs at those who insist that Canada places too many restrictions on charities to fundraise to conduct activities abroad, and issue tax receipts to donors, saying Canada has one of the best systems in place for this type of charitable activity.

Canada, he says, allows charities that conform with the CRA’s direction and control rules to take in as much money as they can, issue the equivalent amount of tax receipts “and then allow them to spend 100 cents on the dollar [for activities] outside of Canada. I am not going to say that’s a stingy and unfair system.”

The thing to remember about the way this system is set up by the CRA is that when looking at how those dollars are spent, the agency will insist on measures of control to ensure donor dollars are not being mishandled and are being used for the object intended. What it boils down to is for charities to exercise common sense in how they plan and control their projects outside of Canada.

Monitor, monitor, monitor

“Do your due diligence. I mean, who would send $100,000 abroad with no written agreement? Unfortunately, the answer is that quite a few Canadian charities get advice from lawyers [who minimize CRA rules],” Blumberg says.

“Look, are people in South Africa angels where they will spend $100,000 on exactly what you had in mind without an agreement to do so? It’s an unrealistic expectation. These are human beings and they are no more or less honest than Canadians.”

So the essential things you should have in place before earmarking money for foreign operations are: a written agreement and a detailed statement of activities to show the CRA — and this shouldn’t just be a vague statement like “to relieve poverty.” Rather it should detail how the money is supposed to be spent.

Also create a periodic payment structure so that the project managers on the ground only get payment when set phases of the project are completed satisfactorily and report back on progress. “For a three-year project, don’t send $1 million and then wait for reporting back at the three-year mark,” he cautions.

The foreign charity should also be required to acknowledge the Canadian funding, whether through signage or including the charity’s support on all written reports. They should also send regular progress reports on the work being done.

All of this will help the Canadian charity justify their funding outside Canada, he says.

“It’s also important that the Canadian charity keep copies of the books and records of their activities and make sure these documents are maintained in Canada,” Blumberg says.

The bottom line is that any time a Canadian charity wants to send funds abroad, they should make sure they have all the mechanisms in place to make sure the money is appropriately spent.

Blumberg also trotted out a figure from a 2006 Ipsos-Reid / Muttart Foundation poll titled Talking About Charities 2006: Tracking Canadian’s Opinions About Charities and The Issues Affecting Them.

That poll revealed the following perceptions by Canadians of various charitable activities.

“Of the 10 types of charities asked about in the study, Canadians are most likely to trust hospitals a lot or some (89%), followed by charities that focus on children/children’s activities (85%), health prevention/health research (84%), education (77%), social services (74%), protection of the environment (73%), protection of animals (73%), churches (67%), the arts (61%) and international development (57%).”

It’s that last number that Blumberg wants addressed.

“There are enough challenges to international development and assistance without [Canada] having lowered standards, which would encourage more public distrust. We need to encourage public trust so people will give to international organizations. The fairest way to do that is for Canadian charities to have higher standards.”

According to the CRA, there are some 5,200 Canadian charities that spend funds outside of Canada. (This number was derived from those charities that indicate such spending on their T-3010’s submitted to the agency every year.)

For all intents and purposes, he says, the CRA acknowledges that while foreign aid projects may be well-intentioned, sending Canadian donor dollars abroad may not always yield intended results.

“Money and intention are not enough. Canadian charities involved in these endeavours need to have knowledge and experience with risk management procedures.”

It’s the law

Lastly, Blumberg warns that Canadian charities operating overseas also need to be aware of the charity laws in other countries.

“It’s sometimes disrespectful of Canadian charities to just go in and start operating in another country. Many foreign governments are trying to maintain some sort of regulation, as we are here in Canada,” he says. “How would we like it if doctors from another country just jumped off a plane and started helping people in some neighbourhoods in Canada because they felt sorry for them? We likely wouldn’t put up with that for very long.”

Andy Levy-Ajzenkopf is president of WordLaunch professional writing services in Toronto. He can be reached at andy@wordlaunch.com.

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