The Regulator for Charities in England and Wales
(Version July 2002)
This study focuses on the commercial partnership that exist when a charity and a commercial company enter into an agreement either to raise funds for the charity or to raise its profile. Typically this will allow the company to use the charity’s name and logo to promote its own products or services. In return the charity receives a proportion of the income, or some other benefit, generated from the promotion of those products. The report does not cover partnerships that seek to deliver a charity’s service to its users, or the relationship that exists between a charity and a wholly owned trading subsidiary.
As a fund-raising technique, commercial partnerships are just one option available for charities to choose from among a wide portfolio of funding options and opportunities. In some cases, commercial partnerships may not prove to be an effective or viable option for a charity and the trustees may wish to use other forms of fund-raising.
A charity’s name is a precious asset and using it to help develop and promote successful commercial partnerships can generate a wide range of benefits for both the charity and the commercial partner. These benefits include the opportunity to raise funds and develop effective working relationships between the charitable and the commercial sector.
To highlight good practice and legal requirements, we have consulted our bank of worked cases and used our own experiences of the issue. We also approached a range of charities that are actively raising funds through commercial partnerships to meet and discuss the issue.
Charities have much to gain from entering into commercial partnerships with companies, both in terms of the opportunities for fund-raising and in providing a mechanism for generating subtler and more pervasive benefits like improved understanding of the corporate sector.
Any charity can enter into a commercial partnership with a company, regardless of its nature and size. It is not the preserve of large national charities.
Commercial partnerships can be worth a great deal and represent big business, both for charities and companies. Benefits for charities include financial donations, gifts in kind, influence within the partner company and a raised profile, all of which can enhance a charity’s reputation, lead to further support, and help achieve the charity’s objects.
However, charities choosing to raise funds through commercial partnerships need to recognise that the mechanism also carries inherent risks. They should take appropriate steps to identify and address these risks before starting an agreement. A number of charities have also stressed the importance of placing commercial partnerships within the framework of a wider fund-raising strategy. Whilst partnerships can be effective, they may not be the most effective way of raising funds and the more traditional pursuit of legacies and direct appeals can generate more with less initial costs and less risk. However, a partnership can tap into "new" sources of income which a traditional appeal will not reach and the raising of a charity’s profile may, in the longer term, boost other fund-raising ventures.
A successful partnership can raise both a charity’s income and profile. An unsuccessful one, where stakeholders perceive the charity to have "sold out", can damage income and profile.
The main difficulties that the Commission encounters in this area are cases where charities:
Charities can mitigate the chances of problems occurring with commercial partnerships by ensuring that they have robust policies and procedures in place prior to entering into an agreement. These should be incorporated within the charity’s wider fund-raising strategies and reviewed on a regular basis to ensure they stay relevant and fresh.
The main points arising out of this report are summarised below. Further information on each point can be found in the main body of the report. Charities may also find the resources listed in Annex B, useful.
The Commission will seek to incorporate the findings from this report into its range of publications.
"If I was giving a charity advice, I would say do not compromise your work or your principles and don't underestimate the power and importance of your brand, which might actually be more important than a product brand, even though it is a market leader". (Business Community Partnerships: Fact or Fiction? Business Community Connections (2001))
A charity’s name is a unique and precious asset. Our casework experience and discussions with charities indicate that most are acutely aware of this. It is also a message that is conveyed in articles and guidance available to trustees from a variety of sources including a number of our existing publications dealing with charities and fund-raising, (CC20, Charities and fund-raising and Fund-raising through partnerships with companies). Charity names and logos are widely respected and linked to certain values and concepts which many people wish to support. A good example of this is the affinity credit card which has become big business and is an example of the added value that association with a charitable cause can give a commercial company.
Commercial partnerships exist between charities and companies for mutual benefit. In a commercial partnership a company uses a charity’s name in association with its own in order to generate a specific financial or other benefit, part of which is given to, or applied for the benefit of the charity. As an asset, the name of a charity can be used to further the overall interests of the organisation; commercial participation is a valid way of achieving this.
Charities often have strong brand names and personalities which need to be aligned to their core work to ensure that the fund-raising message is integrated and consistent with the charity’s aims and values. The practice of "branding" charities, ascribing a specific value to a charity’s name and logo, has gained prevalence in the USA and is designed primarily to assist charities in negotiating a fair deal with a commercial partner. For charities, establishing a "brand personality" is the culmination of a process which entails ensuring there is a common understanding of the objectives, values and aims of the charity throughout the charity.
In our experience, charities can risk public confidence and support when their fund-raising activities and choice of commercial partners seem not to be consistent with the charity’s core work, aims, values and image. High profile press stories and Charity Commission cases testify to the damage that can be caused to a charity’s reputation by a real or perceived clash between a commercial partnership and a charity’s core work, image and name.
Every charity has a duty to ensure that it protects its name and reputation when it gets involved in commercial partnerships. The law does go some way to embracing and protecting charities, but trustees and charity staff should remain vigilant and give full regard to recommended good practice and professional codes of conduct.
Well-known commercial partnerships are often those established between a large charity and a "brand name" company, working together in a joint promotional venture. However, in theory any charity, regardless of its size and nature can enter into a commercial partnership
The Charity Commission has identified problems with this sort of fund raising through commercial partners in a wide range of charities. During 2001, 148 cases were opened by the Charity Commission in connection with commercial partnerships;
|
Size of Charity (Refer to page 34 for the income levels used to categorise the size of charity in this report) |
Number of cases |
% of cases opened: 2001 |
|
Small |
16 |
11% |
|
Medium |
42 |
28% |
|
Large |
40 |
27% |
|
Very Large |
50 |
34% |
During this same period a further 217 cases, representing 22% of the total of all cases evaluated by the Commission’s Investigations Division, were evaluated because of an apparent failure to comply with the legal requirements (for details of the legal requirements see pages 21 to 25).
Developing a successful strategy and using local companies
This case highlights the steps that have been taken by a medium sized charity to tap into local companies and form successful commercial partnerships.
The different types of commercial participation, described on page 32, also have a role to play in determining the visibility a partnership will receive. For example a cause-related marketing promotion is likely to attract more widespread attention than a simple one-off sponsorship agreement, regardless of the size of the charity.
Charities need to ask themselves exactly what it is they want to gain from a commercial partnership, prior to entering into an agreement, and ensure that the terms that are agreed are of an appropriate level of benefit to the charity. As highlighted in our fund-raising booklet, CC20 and website document Fund-raising through partnerships with companies, association with a charity’s name can be worth a great deal to a company, and responsibility lies with the charity trustees to protect the charity’s best interests by negotiating and upholding an agreement that reflects the full and fair share of that added value.
"Harnessed in the right way, companies can also add impact and weight to the charity’s cause and effectively add value to the relationship in non-financial ways".
Senior fundraiser at a very large charity.
Once a partnership has begun, charities should regularly monitor and review performance. This will help ensure that the expectations of the charity and the commercial partner are being met and that the benefit the charity is gaining from the agreement is not outweighed by its costs to the charity’s reputation or otherwise. We would expect a charity to keep the cost/benefit balance of any joint venture under regular review and, if the balance turns against the charity, to have the ability to withdraw from the venture.
A partnership can provide "The opportunity to raise money and promote the charity’s key messages using new platforms and communication channels and possibly to new target markets. The use of a company’s sales distribution network for fund-raising activity can also be extremely lucrative and cost efficient".
A member of the fundraising team at a national charity.
Commercial partnerships can bring with them a wide range of direct benefits including financial rewards, raised public awareness of the charity’s cause, gifts in kind and influence within a company. Subtler benefits mentioned by charities we talked to included: building mutually beneficial relationships with companies, working together creatively to achieve shared goals, and developing good practice. However, charities should be vigilant about the fact that commercial partnerships can also go wrong, even if the appropriate research and planning steps have been taken, leaving the charity with very little or no benefit.
Some charities are exploring the possibility of using commercial partnerships as a means to further their objects by influencing change within a company. A partnership which sets out to reform the working practices of a commercial company has the potential to achieve significant results, however, it also carries additional risk. This is especially true if the charity deliberately seeks out a company whose current practices are at odds with the charity's ethos and with the aim of using the partnership as a "lever for change". In this scenario the trustees will have some very fine decisions to make and they must be confident of the information they hold and their ability to use it in a way which will further the interests of the charity. Trustees also need to guard against losing sight of the charity's object, and they must ensure that the reforms they are trying to bring about are consistent with the objects of the charity as defined in its governing document.
Commercial partnerships as levers for change
This case highlights the steps taken by a very large charity to use its commercial partnerships as vehicles to foster and encourage better environmental practice within companies.
Whether to enter into a commercial partnership with a company can bring with it a number of ethical questions for a charity. It is recommended that establishing an ethical policy, which is integrated with the charity’s wider fund-raising strategy, and clearly outlines what businesses the charity can and cannot become involved in and those it is wary of, can help safeguard the charity against damage to its name and reputation. It can also help to ensure that staff and trustees share a common understanding of the charity’s ethical aims and values and lead to a more consistent approach between different departments in larger and/or more complex charities.
Additionally, we would recommend that charities consider informing their stakeholders of any ethical policies and commercial partnerships they have by including details in their Annual Report and Accounts. Highlighting this area of the charity’s fund-raising activities directly benefits the charity by ensuring transparency, and helps meet good practice guidelines.
Many of the larger charities that we spoke to demonstrated a high level of awareness of the importance of having an ethical policy in place to support their fund-raising activities, embracing those elements discussed above. Medium and smaller charities involved in commercial partnerships seem less likely to have developed specific ethical policies. This may be due to a number of factors, including a lack of experience of fund-raising through commercial partnerships. Alternatively, the usual types of commercial partnerships these charities become involved in are devoid of ethical implications for the charity which reduces the need to have a well-defined policy. Smaller charities may also they lack the resources and/or expertise to support the development of an ethical policy.
"The charity will not consider a joint venture with any organisation or company whose core business is deemed to be in conflict with our own – according to the charity’s governing document".
Fundraising manager at a very large charity
Defining the charity’s stance on ethical issues and formulating an appropriate policy should form part of the overall research and strategy process. In our experience, any ethical issues that arise will be heavily influenced by the nature of the partnership and the partner itself. The charity should be prepared to treat these on a case by case basis.
Charity stakeholders rightly have high expectations of how charities should conduct themselves and these views are often given a prominent platform of expression as they are capable of attracting lively public interest and debate. At times, when expectations have not been met or a charity has been perceived to be acting unethically, charities have found themselves the subject of high profile news stories. The process of researching the activities of a potential commercial partner to assess the suitability of a proposed partnership might not always be straightforward. In addition to researching the income generating activities of the company, charities should also pay attention to whether the company’s wider philosophy will be a good fit with their own. For example, the company’s policies towards its employees and customers may prove important.
During our research some charities highlighted their concern that in an effort to attract and secure support a number of charities might be tempted to adapt their philosophy to suit the wishes of the commercial partner. This could lead to criticism from uneasy stakeholders that the charity has acted unethically by "selling out" to a company and could possibly lead to a breach of trust.
"Sometimes a charity’s message or mission can be diluted or compromised to fit a company’s marketing strategy. In order to avoid this, the charity should be clear on its messages and ensure that a company embraces the charity’s remit. In addition, the charity may be asked to do more than its resources allow. To avoid this charities should be clear in the planning stage of a partnership to agree with a company respective roles and responsibilities".
A charity’s fundraising manager
In the case of large companies, charities may not always be able to get the full picture of the company’s activities, even after carrying out research. Nevertheless, trustees must be able to satisfy themselves and their stakeholders that they have secured enough information to ensure that they are confident their commercial partner fits comfortably within the framework of the charity’s ethical policy.
"We have produced ethical corporate fund-raising guidelines, and always thoroughly research potential partners prior to entering into a formal partnership".
Director of corporate giving at a very large national charity
In our experience, charities that enter into commercial partnerships without giving due regard to ethical issues are in danger of putting their name and reputation at risk, in addition to causing a possible breach of trust. Overall responsibility rests with the trustees to ensure that they act responsibly and with a sufficient level of care when considering any ethical questions that may be attached to a proposed commercial partnership.
Charities and ethical partnerships
This case highlights the difficulties a charity faced when it established a commercial partnership with a company which attracted negative and contentious criticism, primarily from another charity.
"We will seek external legal advice to ensure that the charity has considered all risk assessment criteria effectively, and that our written agreement covers the charity for all eventualities".
A charity’s fundraising manager
We found that charities generally agreed that identifying potential risks and managing expectations is a fundamental part of ensuring commercial partnerships are successful, effective and mutually beneficial from the outset of an agreement.
Fund-raising through commercial partnerships is an important source of income for many charities, as well as offering new and innovative means of promoting a charity’s cause. However, in common with all forms of fund-raising, commercial participation carries a degree of risk, which trustees have a duty to identify and manage if they are to effectively discharge their duty of care.
"We do assess the anticipated financial benefit of any partnership, as well as all likely costs to ourselves in terms of time and resources. In all commercial partnerships we ask for a minimum income guarantee, which is based on the value of an association with our name and logo as well as the resources we would need to commit to the relationship, and the perceived benefits for the partner. In a broader sense we have key performance indicators for target returns on investment in all our fund-raising ventures".
A charity’s director of fundraising
Charities must be careful about how they allow the charity’s name to be used by a commercial partner during a joint venture. It is the trustee’s responsibility to ensure that this principle is enforced. We found during our discussions with charities that many have an acute sense of the value of a charity’s name and reputation. This was particularly evident in the larger "brand name" charities.
Smaller charities may be more vulnerable to risk. It is likely that this is due, in part, to differences in charitable resources. For example larger charities can sustain their own fund-raising departments.
Choosing a commercial partner with care
This case highlights the need for charities to consider the risks attached to commercial partnerships before entering into an agreement.
Some charities have expressed concerns that there is a danger that charities have excessive expectations of the benefits commercial partnerships can bring. During our research, a number of charities stated they felt that the amount of time and effort they invested in establishing commercial partnerships was disproportionately large in comparison to the benefits they received. A very large charity with a number of well-established commercial partnerships stated that if the charity was given a windfall to pour into its fund-raising activities, it would not use it to invest in commercial partnerships. Instead, the charity felt it would be more beneficial to invest in other fund-raising tools which it felt were not as resource intensive. Although it is often difficult to quantify longer term benefits that arise from a raised profile.
A very large charity that runs several highly successful partnerships saw these partnerships account for 4.5% of its fundraising income. However, in the same period legacies, which require much less administration, brought in 25% of the charity’s fundraising income.
Have there been any commercial partnerships which you regretted taking on and why? "Yes - regrets are on the large projects, for example; one major supplier went bust, another subsequently proved ethically unsound. Other difficulties are the resources that charity law requires us to put behind commercial arrangements".
Senior fundraising manager of a national charity
Identifying and managing risk effectively appears to be an increasingly important concept for charities to tackle. A charity with solid policies and procedures in place for tackling the issue of risk management also creates a framework for managing expectations and is likely to inspire confidence in the charity’s stakeholders
Charity Commission guidelines, including our general fund-raising publication CC20, the website document; Fund-raising through partnerships with companies, and a number of the published Commission Inquiries on the website, all raise the issue of risk management. They also promote the message that great care must be taken to ensure commercial partners are reliable, reputable and that they comply with the law. It is also important that charities should have the means to check and monitor the performance of the company and others that use the charity’s name. We have seen that it can be very difficult to repair damage to a charity’s good name.
Before entering into an agreement, charities should consider whether a proposed commercial partnership is a viable proposition. In order to assess the validity of a proposal and to help with the process of risk and expectation management, charities need to get to grips with the principles of effective research, planning and strategy. The more complex the proposal, the greater the need for a process which incorporates these principles.
We have found, from discussions with charities and from looking at Charity Commission cases, that research, planning and strategy are key components in ensuring that commercial partnerships are effective and mutually beneficial from the outset.
"We have a wealth of experience in the development of commercial partnerships with companies and as a consequence have an increased knowledge of the area. We are well informed about all aspects of charity law and have established precedents for most corporate partnerships. In cases where a new corporate partnership breaks a precedent we would refer to our solicitors".
A fundraising manager of a very large charity
Current Charity Commission guidance, including CC20 and Fund-raising through partnerships with companies, recommends that charities develop an internal policy to cover research, planning and strategy processes which includes establishing flexible written criteria for assessing the suitability of a proposed commercial partnership. An internal policy should include: whether the partnership is compatible with the charity’s other policies, strategies and values; whether the company will be able to meet the agreed financial and any other obligations and how the charity’s stakeholders will view the agreement.
Charities seem to have a high level of understanding and commitment to establishing internal policies to deal with commercial partners. However, this principle was far more pronounced amongst the large and very large charities.
"The charity works within the Charities Act guidelines and takes legal, commercial, and ethical best practice seriously in all our fund-raising. Commercial fund-raising always involves a comprehensive letter of agreement with the charity’s trading company, and all activities from sponsorship to public collection and raffles meet legal requirements".
A charities director of corporate giving.
Charities have a responsibility to use their resources wisely and in furtherance of the charity’s objects when deciding on appropriate fund-raising mechanisms. Ultimately it is the trustee’s responsibility to ensure that this requirement is met. Prior to committing charitable resources to fund-raising through a commercial partner, charities might find it useful to obtain advice from an appropriate professional or a specialist organisation.
In our experience, charities which fail to research and plan out a suitable strategy for ensuring their commercial partnerships are as effective as possible are more likely to encounter difficulties which can require our intervention and can lead us to open a formal Inquiry.
Part of the research process should include considering whether commercial partnerships will actually prove to be an effective method of fund-raising within the scope of the charity’s wider fund-raising strategy. Other forms of fund-raising might prove to be more effective and efficient in the context of a particular charity’s circumstances and charities should consider investigating the options that are available to them.
Our research revealed that charities approach companies about the possibility of a commercial partnership using a wide variety of techniques, including networking, pro-active cold approaches - such as formal pitch presentations and through personal contacts. We found there is a general consensus that where charities are able to capitalise on a personal link to a company, for example through a trustee, the membership, or member of staff, they have an increased chance of attracting and securing the company’s attention and support.
However, despite the success of using contacts to approach companies, charities need to remember that a conflict of interest can arise in these circumstances. If a conflict of interest is identified, it needs to be managed effectively in order to ensure that the reputation and integrity of the charity is not compromised. In some instances, it might not be possible or desirable to manage a conflict of interest which has a detrimental impact on the effective working of the charity - for example if a trustee or trustees have to withdraw from meetings because of their involvement with the commercial partner and are restricted from fulfilling their role in the charity. The Commission's booklet CC24, Users on board, contains further information and guidance on conflicts of interest and how they can be managed effectively.
How is a potential partnership first put forward - do companies usually approach you or do you approach them? "Potential partnerships are a combination of both. The charity is often approached by companies and/or PR firms about the possibilities of commercial partnerships or through nominations by staff. The charity also has a comprehensive new business programme which is used to actively solicit potential company support".
Senior fundraiser at a national charity
Concerns surrounding the differing nature and characteristics of the charitable and commercial sector are often raised in relation to the question of approaching companies in the best way possible. Charity and company representatives alike have expressed the general opinion that, where appropriate, charities need to embrace the language of the corporate sector in addition to developing a business-like approach towards prospective commercial partners.
We found that a number of Charity Commission cases highlight the need for clear channels of communication between the charity and the company from the outset of an agreement. Successful communication will be enhanced if the charity’s own internal communication channels are clear and effective, prior to entering into a commercial partnership.
Ensuring effective communication
This case highlights the need for charities to ensure that they have effective channels of communication in place and, where necessary, appropriate policies for delegating responsibility for the management of a commercial partnership.
Companies approach charities with proposals for commercial partnerships using a variety of channels. One method companies can use to do this is to go through specialist agencies that act as an intermediary, or brokerage, between the commercial partner and a suitable charity. In these circumstances, charities need to consider any additional risks that the involvement of an agency may bring, prior to entering into an agreement. It is particularly important that charities ensure there are clear and effective communication channels between the company, the charity and the agency and that they seek to follow the guidance outlined in this report.
Communication with a commercial partner
This case highlights the need for charities to ensure that there are clear and open channels of communication between themselves and their commercial partner.
"Every partnership that we undertake is fully compliant with charity law and our own ethical standards for partnership".
Fundraiser in the corporate giving team of a very large charity
Charities must be aware of the legal requirements contained in Part II of the Charities Act 1992 and The Charitable Institutions (Fund-raising) Regulations 1994 if they are involved in, or thinking of becoming involved in, fund-raising with a commercial partner. The onus for compliance is placed on the commercial partner, who is penalised if the requirements are not met. Trustees must comply with the law and ensure that those with whom they deal also comply with the law. The Commission has highlighted the legal requirements in CC20 and Fund-raising through partnerships with companies. The requirements contain important controls designed to safeguard the assets, name, and reputation of the charity, including:
The terms "professional fund-raiser" and "commercial participator" are defined in section 58 (1) of the Charities Act 1992. Please refer to the Glossary on pages 34 to 35 for the details.
Charities have in their possession legal powers, contained in the Charities Act 1992, enabling them to monitor and control charitable fund-raising undertaken by a commercial partner. These powers need to be considered in conjunction with the 1994 Fund-raising Regulations, outlined above, and may be useful if a charity feels that its name is being used unlawfully.
Charities should be aware that the provisions detailed in Part II, section 58 onwards of the Charities Act 1992 include a number of stringent and pro-active measures designed to protect charities, the public and the reputation of charitable fund-raising. Charities are by no means impotent to act if they find themselves in a position with a commercial partner that needs to be resolved through legal intervention. For example, a charity can apply under section 62 of the Act (References to "the Act" in this section are to the Charities Act 1992) to the Courts for an injunction to prevent commercial partners from using the name of the charity to inappropriately and unlawfully raise funds. There is a power in section 59 of the Act that empowers charities to apply for an injunction to restrain any contravention of a contract, and render the contract unenforceable by the partner except under this section. Furthermore, if a contract does not meet the requirements of the Act and regulations, then no expenses or other costs may be retained by the partner unless a court so orders.
It is our experience that many charities are not aware of the range of legal provisions in place to protect their interests in a venture with a commercial partner. Accordingly, we recommend that all charities involved, or thinking of becoming involved in a commercial partnership should familiarise themselves with the full range of legal powers that exist to protect them.
As well as protecting charities, Part II also affords protection to the public, for example, through the provision of a solicitation statement (A statement must be given to inform donors what proportion of their donation goes to the fund-raiser.), referred to in section 60 of the 1992 Charities Act and the remuneration and expenses provisions in section 58. These requirements should be viewed as the minimum starting point for a charity drawing up an agreement with a commercial partner. In our experience, we have seen that it is vital that charities do not simply accept a commercial agreement drawn up by the company, but retain control over the process to ensure that the agreement is appropriate and fulfils the best interests of the charity.
Avoiding negative publicity
This case highlights a charity which attracted negative publicity in the media when its commercial partner failed to meet the legal requirements of Part II of the Charities Act 1992 and the 1994 Regulations.
We found in our discussions with charities that there is a high level of awareness of the existence of the legal requirements attached to the establishment of commercial partnerships. Knowledge of precisely what the requirements entail is sketchier across charities of all sizes. This is not problematic in itself, provided that charities have ready access to the full details of the requirements when they need them.
Relatively few charities had used our web-based guidance Fund-raising through partnerships with companies. This document gets approximately 200 "hits" a month compared to nearly 900 for the web (as opposed to booklet) version of Charities and Fundraising (CC20). We acknowledge that greater publicity for our guidance and/or its incorporation into the CC range should be considered in response to the findings of this report.
In 2000, 4% of Commission Inquiries were opened as a direct result of charities failing to comply with the relevant fund-raising legislation. In the same period, 22% of the cases evaluated by Commission investigations staff arose directly as a result of an apparent failure by charities to meet the legal requirements.
Complying with legal requirements
This case highlights the need for charities to ensure that their commercial partners are complying with Part II requirements.
Nevertheless, Part II of the Charities Act 1992 and the 1994 Regulations do not apply to commercial partnership agreements made between a charity’s trading subsidiary and a company. In the interests of ensuring the integrity of the name of the parent charity the trustees should take steps to promote good practice and apply the provisions of Part II and the 1994 Regulations to commercial partnerships between a subsidiary trading company and a commercial partner. Enforcing these requirements will help the charity control and monitor the trading subsidiary, ensuring that the best interests of the charity are protected.
Any charities that are unsure about meeting or complying with any aspect of the legal requirements outlined above should seek appropriate professional advice.
The treatment of payments to a charity by a company as a result of a commercial partnership can be complex and payments are usually taxable. Trustees need to ensure they understand their duties and responsibilities in relation to the Inland Revenue's requirements if they are to fulfil their duty of care towards the charity. The Inland Revenue provides a free booklet, IR2001 - Clubs and Charities Series, covering the subject of charities and commercial partnerships, which we strongly recommend trustees to read before entering into an agreement.
We would also recommend that charities seek professional advice regarding the tax implications of a commercial partnership involving use of the charity’s name or logo.
Direct tax elimination may be possible if a charity operates a commercial partnership through its subsidiary trading company rather than through the charity itself. In these circumstances charities need to be aware that their names and logos are valuable assets which must be protected. Charities have a duty to ensure that the partnership arrangements protect their name/logo, act in the charity’s best interests and are appropriately secured. We strongly recommend that charities consider taking professional advice on whether a partnership agreement is suitable before establishing a commercial partnership, and refer to IR2001.
Further information on charities and trading subsidiaries can also be found in the Charity Commission booklet, CC35 Charities and Trading. If an agreement is established between the subsidiary trading company and the commercial partner, we recommend that both parties should comply with the legal requirements discussed on pages 21 to 26.
"The charity takes advice from the Inland Revenue, legal advisers, consultants and from bodies such as the ICFM (Now the Institute of Fundraising, see page 39 for contact details) as appropriate".
A director of fundraising at a very large charity
Charities also need to be aware that different types of commercial participation might have differing implications for the VAT treatment of a charity’s affairs, specifically with regard to the nature and status of any donation made to the charity by the company. Charities with any doubts about whether VAT should be considered need to refer to their local VAT office and HM Customs and Excise Notice, 701/1: Charities, for further information. It is likely that professional advice in relation to the VAT aspects of a commercial partnership will be necessary.
Charities should also consider and take advice on establishing an adequate level of reserves for any contingent liabilities a commercial partnership may entail.
During our research, we found that there is generally a high level of understanding about the requirement to acknowledge and consider the tax implications of a commercial partnership. This was more evident amongst the large and very large charities we talked to than in some of the smaller organisations we met.
"The partnerships which have worked best for us have been those in which we are an equal partner in a promotion, where the company is open and honest about its aims and objectives, where the company has real synergy or empathy with the charity and where an association has a meaning to shareholders or customers".
A charity’s fundraising manager.
A fair deal for a charity is one that represents full value for the charity in return for the use of its name and/or logo, based on the principles of equality, transparency and integrity. Charities should consider the level of benefit the commercial partner will receive from the agreement and be prepared to negotiate to arrange the best deal possible. If a commercial partner will not agree to a charity’s reasonable terms we would expect the charity to go elsewhere.
Charities should use their resources wisely when entering into commercial partnerships and should aim to negotiate an inclusive and beneficial agreement which represents a fair deal for the charity. Charities should ask themselves, prior to entering into an agreement, whether the agreement will protect the name of their charity and the good name of charitable fund-raising in general.
Avoiding negative publicity
This case demonstrates that trustees need to ensure they are satisfied that the charity is getting a good deal from its commercial partners.
The legal requirements of Part II of the Charities Act 1992 and the 1994 Fund-raising Regulations go some way to helping charities get a fair deal from commercial partnerships. For example Regulation 5 of the 1994 Fund-raising Regulations enables charities to call for the books and records of the commercial partner kept for the purposes of the agreement. We also found during our research that many charities do refer to additional good practice guidance and specialist organisations for further information and support, to supplement the framework constituted by the legal requirements. Annex B, on pages 36 to 42, contains details of guidance and specialist bodies available to charities.
Based on our experience and casework, it is clear that charities do not always enter into commercial agreements that represent a fair deal. We recommend, as a matter of good practice, that charities find out prior to entering into an agreement what the likely financial benefit for each partner will be as part of the process of judging the fairness of a proposed deal..
Some Commission cases give examples of charities, particularly smaller organisations, being approached by companies and entering into commercial partnership agreements from which they receive very little financial, or other benefit. In some of these cases the added financial value that the company derived from its association with a charity was disproportionate to the sum due to the charity. We have seen that this can damage the name of an individual charity and also discredit the wider name of charitable fund-raising.
Ensuring a fair deal for the charity
This case highlights why it is important for charities to research and ensure that commercial agreements give them a fair deal.
The complexity of an agreement depends on the size and complexity of the charity, the company and the nature of the commercial partnership itself. Charities need to make sure that commercial agreements are clear, accessible and in place before the partnership begins. In order to meet their responsibilities, charities should take professional advice to ensure that the name of the charity is not improperly used or exploited and that the terms of the agreement are precisely drafted and that the interests of the charity are fully protected. As an added safeguard, charities can ensure they have the right to prevent future use of their name by a commercial partner, if they are not satisfied with the partnership.
Additionally, charities should give careful consideration to suitable provisions for terminating the agreement, together with their commercial partner. A suitable "exit strategy", which covers review periods, length of term and the possible consequences the termination of the partnership would have on the charity should be drawn up by the charity. Further guidance can be found in the Resources section .
"We always retain and exercise the right to proof and approve any use of our name and logo".
A charity’s fundraising director.
Overall responsibility for ensuring that clear, unambiguous and accurate information is provided to the public using a commercial partners services rests with the commercial partner. The charity must ensure that its commercial partner meets these responsibilities, minimising the chances of a situation arising in which the charity could be criticised of maladministration as a result of neglecting its duties in this area.
Ensuring commercial agreements are clear and appropriate
This case highlights the need for charities to make sure the information the public is receiving about the charitable donation is clear and unambiguous.
In some circumstances, such as those outlined in the case study above, there may be a conflict of interest issue to consider in a commercial partnership. In these cases, once the conflict of interest has been identified and declared, it must be managed effectively and openly in order to ensure that the integrity of the charity or persons involved is not in doubt. In our experience, charities that have established appropriate conflict of interest policies are better placed to respond to this issue when it arises, answer any criticisms which may be levelled at the charity, and in turn help to protect the name and reputation of the charity. Some conflicts may be impossible to manage. Some may result in a trustee receiving a benefit, albeit an indirect benefit (e.g. if he/she was a shareholder in the company), which would have to be allowable under the charity’s governing document.
"Review points are systematically built into all commercial partnerships". A senior fundraiser at a very large national charity
Once the terms of the commercial partnership have been agreed, charities should consider putting in place monitoring and reassessment provisions to ensure that the arrangement continues to be an effective means of fund-raising. Charities should not automatically renew commercial partnerships without assessing whether any changes are needed.
Under Regulation 5 of the 1994 Fund-raising Regulations commercial partners are legally required to make available to charities upon request any books, documents or other records (however kept), which relate to them and are kept for the purpose of the agreement. Using this Regulation enables charities to see exactly how much the commercial partner is making from the agreement, and should assist them in monitoring and assessing the performance and suitability of a commercial partnership.
Additionally, as discussed in the ‘Legal issues’ section , charities should consider using the legal powers they have at their disposal, where appropriate, to monitor and control charitable fund-raising by commercial partners. For example, in cases where the charities name is being used unlawfully, or the provisions of the commercial agreement need to be enforced by the charity. As discussed on page 22, charities do have considerable legal powers designed to assist them safeguard their name, donors and the reputation of charitable fund-raising, which can be applied, if necessary, as a result of an effective monitoring programme. The effective monitoring of the commercial partnership by the charity, awareness of the relevant legal powers and a willingness to tackle situations where the charity’s best interests are not being met ensures charities will be able to meet their responsibilities.
Charities should periodically review and consider the consequences and impact the termination of a partnership agreement will have on their fund-raising income. There may also be additional and complex factors to consider in some cases, such as publicity and safeguarding a new donor base to ensure the charity’s best interests are protected.