Company Limited by Guarantee Or Incorporated Association: Which Legal Structure Should You Choose for Your Non Profit?

So you are thinking of setting up a not-for-profit organisation and not sure what legal structure to utilise? Or you have an established Non Profit organisation but not sure if your current legal structure is the most effective for you to achieve your NFP purpose? In this blog, we explore the two most common legal structures for NFP organisations in Australia: Non profit Company Limited by Guarantee and Incorporated Associations, and highlight the pros and cons of each option.

The two most popular forms of incorporated structures are Incorporated Associations (IAs) and Non Profit Company Limited by Guarantee (CLG). In a number of cases, entities may start out as IAs but will later restructure themselves as CLGs as their operations and needs change.

Choosing the right incorporated structure for your organisation is a very important legal decision, as it has consequences for:

  • where your organisation is allowed to operate (ie. only in one state or across Australia);
  • your ability to attract external funding and obtain finance;
  • who your organisation must provide information to (ie. a government regulator); and
  • what kind and level (detail) of information your organisation must provide.

Incorporated Associations

Incorporated Associations were introduced as a legal structure to provide a simple and inexpensive means of incorporating not-for-profit groups. All States and Territories have their own, slightly different, laws to set up associations.

IAs can only operate within the State that they are registered – so for Queensland under the Associations Incorporation Act 1981 (Qld), an IA can only have operations within the QLD state boundaries. If your NFP has, or is planning operations in multiple states (including fundraising in other states, e.g via a nationwide internet appeal), then an IA model is unlikely to be appropriate to meet your needs.

The Government Regulator of IAs in QLD is the Office of Fair Trading. If you are registered as a charity, you will also be registered with the Australian Charities and Not-for-profit Commission (ACNC), and must also report to the ACNC. This means IAs that are registered charities will report to at least two regulators.


Reporting and Audit Requirements – Incorporated Associations

Reporting and audit requirements are on a tiered basis, with tier 1 IAs (current assets or revenue greater than $100k) having a requirement to prepare financial statements and have them audited.

Tier 2 IAs (current assets or revenue between $20,000 and $100,000) have a requirement to prepare financial statements, have them signed by an approved person who can certify that financial records show that the IA has adequately controls in place. These financials are also required to be lodged with the Office of Fair Trading, but no requirement for an audit.

Tier 3 IAs are also required to lodge financial statements, with the IA’s President or Treasurer preparing a signed statement stating that the IA keeps financial records in a way that properly records the association’s income and expenditure and dealings with its assets and liabilities.

There is no requirement for the accounts to be audited or reviewed.


Non Profit Company Limited by Guarantee

Although we often think of a ‘company’ as being a business, a non profit Company Limited by Guarantee (‘CLG’) is a special type of company structure for not-for-profit groups all across Australia. Just like a business company, it has ‘directors’, but unlike a business, has ‘members’ instead of ‘shareholders’. Some of the provisions of the Corporations Act (eg. directors’ duties and penalties) that apply to ‘for-profit’ companies also apply to CLGs.

This structure is most commonly used for NFPs wanting to operate across Australia (or in multiple states), or larger NFPs, including those that only operate in one state.

Some legislation requires the non profit Company Limited by Guarantee structure for certain types of organisations (eg. registered housing and aged care providers). A CLG structure is also suitable for a wholly owned subsidiary organisation, as it can be set up with just one member (but does need to have three directors).

The Government Regulator of CLGs for registered charities is the ACNC, but certain Corporations Act 2001 regulations still apply to registered charities.

If a CLG is not a registered charity, but still meets the definition of a NFP entity, then currently this type of non profit Company Limited by Guarantee is still regulated under the Corporations Act 2001 and is required to lodge financial statements with ASIC. This may change in the future as the ACNC extends its coverage across NFPs in Australia.


Reporting and Audit Requirements – Registered Charity

Reporting and audit requirements are again on a tiered basis, with either a large, medium or small charity ranking under the ACNC.

ACNC CLGs with revenue greater than $1M per annum are classified as a large charity requiring a full audit and lodgement of financial statements with the ACNC.

ACNC CLGs with revenue between $250,000 and $1M per annum are classified as medium sized charities and can adopt to have a ‘review’ rather than a full audit, which provides a lower level of assurance from the auditor. Financial statements must be lodged with the ACNC.

ACNC CLGs with revenue less than $250,000 are classified as small sized charities, and can choose whether to submit financial statements to the ACNC. No review or audit is required.

All sized ACNC CLGs are required to lodge an Annual Information Statement with the ACNC annually.


Reporting and Audit Requirements – Not for Profit (not registered with the ACNC)

CLGs that meet the definition of a not-for-profit but that are not a registered charity currently still lodge financial statements with ASIC.

If the CLG has turnover of greater than $1M per annum, an audit is required. If the CLG has a turnover of less than $1M per annum, a review is required to be performed.


Which Option is Correct for Your Organisation

Generally speaking, if your NFP is only operating in one State and is not deemed to be a large (*) not-for-profit, then an IA model may be an appropriate structure for your organisation.

N.B.(*) ‘Large’ in this sense is generally accepted to follow the tiered classifications under the ACNC Act 2012– e.g revenue greater than $1M.

However, if your NFP is operating in multiple States across Australia, and/or your organisation is of a larger size, the CLG model may be a more appropriate structure for your organisation.

Other benefits of considering a move to a CLG include:

  1. Removal of dual reporting – a CLG legislated under the ACNC would only need to report to the ACNC once per annum, not to 2 separate regulators (as under an IA model);
  2. Ability to attract independent directors to your Board may be easier in a CLG rather than attracting Committee Members to an IA. The advantages include a greater certainty of legal obligations and the ability for a company to indemnify its officers;
  3. CLGs are arguably a more readily understood and accepted commercial legal structure than IAs. Consequently, it may be easier for a CLG to raise finance from creditors or receive funding from government or philanthropic trusts than IAs.

Any decisions to adopt/change your NFP structure should be run past a qualified not for profit legal advisor who can consider your organisation’s specific circumstances.


Transitioning a CLG to an IA

If you are operating an IA and are considering changing to a CLG structure, the transition may be simpler than you think. Organisations can now transfer directly to a CLG from an IA, subject to passing a special resolution of members and being approved by ASIC.

There may be tax consequences of doing so (for example – stamp duty) – so it is advised to consult a qualified NFP accountant to discuss.


Conclusion

A number of factors will influence an organisation’s decision about whether to become an IA or a CLG. There is no quick and easy answer, but weighing up the various factors will help you to determine which structure best suits the activities, circumstances, direction and resources of your particular group.

MGI South Queensland are not for profit accounting and audit specialists. If you would like to find out more about Non Profit Company Limited By Guarantee or Incorporated Association structures, contact us today on 07 3002 4800 today and let us shout you a coffee to discuss your requirements..

How much will Queensland’s first Social Impact Bond impact the NFP sector?

In Australia, there are around 600,000 not-for- profit organisations of all shapes and sizes working in areas ranging from advancing education to protecting the environment. For many an ongoing challenge is raising vital funding to support their purpose and expand their service.

While governments and philanthropy provide significant sources of funding, not-for-profits are disadvantaged somewhat when compared to their for-profit cousins in being able to access capital investment. Whilst a for profit entity can simply raise equity to investors in exchange for a return on investment, NFPs have been relatively limited in offering similar arrangements due to their NFP status and structure.

The demand for social and environmental solutions in Australia is at record levels, and yet the competition for each charitable dollar and government grant that is on offer has never been so great.

The question arises – how can NFP organisations obtain access to the capital required in order to fulfil their growing not-for-profit purpose?

One potential answer to this conundrum for NFPs is a relatively new concept in Australia called Social Impact Bonds (‘SIBs’). SIBs are a type of ‘payment by outcomes’ funding mechanism that engages private capital. Typically, instead of a government paying directly for the provision of a social service, private investors provide capital to a service provider to achieve agreed-upon social outcomes. If these outcomes are achieved, the Government pays the upfront investment along with a financial return to the private investees.

The first SIB in Queensland was recently announced in March 2017 by the Queensland Government through Social Ventures Australia, to assist in reunifying children in out-of-home-care. This announcement was on the back of a similar SIB launched in New South Wales, which has been generating strong social and financial returns since its inception.

Investor returns on this SIB will be linked to the number of children successfully reunited with their families through the program, and the program is targeting returns of 7.5 per cent per annum.

The benefits of such a scheme are not only for the affected Queensland children, their families and the private investors, but the Queensland Government stand to benefit also. In 2014/15, the Queensland government spent an average of $50,000 on each child in out-of-home care. The multiplier effects for achieving the social and financial returns of each program are therefore clear to see – the more savings that are achieved by the Government, the more likelihood of further SIBs being introduced. The better returns for investors, the more demand for SIBs.

 

For-profit sector beware.

Whilst SIBs are in their relative infancy in Australia and in particular Queensland, they have been providing access to private capital for charities and NFPs in the UK and other European countries for a number of years. And not just large scale projects that would be out of reach for most of the estimated 600,000 NFPs in Australia – smaller bespoke SIB opportunities in which NFPs can all apply to obtain a slice of the pie.

With growing volatility a concern for many investors in the for-profit sector, the NFP sector may have just levelled the playing field in attracting private investment.

To find out more about improving financial sustainability in an NFP read my recent blog What is Keeping Not For Profit Directors Up at Night – https://www.mgisq.com.au/not-for-profit/whats-keeping-nfp-directors-night/

Steve Greene is an experienced chartered accountant with MGI specialising in auditing and consultancy services for the NFP sector.

https://www.mgisq.com.au

According to a survey by the Australian Institute of Company Directors, financial sustainability is the top issue keeping board members of not-for-profit (NFP) entities awake at night. Funding for not for profit organisations has always been a challenge but in an era of change, reduced government assistance and growing competition for each charitable dollar, it’s no surprise that it is now top of mind for NFPs.

Furthermore, returns on cash reserves held in traditional term deposits are barely yielding higher than inflation. Buildings that house core social and community services are becoming tired and in need of repair and the need to invest in IT, marketing and social media has never been greater.

NFPs are facing increasing costs and reduced income – not the perfect scenario for any organisation trying to achieve financial sustainability. In the face of this challenge, NFP Boards must think more broadly about what they can do to improve their financial sustainability.


Traditional funding options

To help this situation, NFPs could adopt the following:

1. Selling Assets

The sale of assets is a relatively easy strategy to release liquidity that can be invested in core operations. However, if funds are not used efficiently, or are just used to fund working capital, then they will be consumed and the organisation will go back to square one.

2. Diversifying Revenue Streams

Many charities are looking to diversify their revenue streams to reduce their reliance on government funding or other major income streams. Reducing your reliance on a specific funding source is a good strategy to reduce risk. However some NFPs are restricted in what they can do by their constitution. Another challenge, which is often overlooked, is that additional revenue activities can draw management away from the core competency and ultimately reduce their focus on strategic goals.

3. Mergers

Mergers and acquisitions offer the opportunity to share corporate overheads and improve margins. However in any merger it can be difficult to merge differing strategies and goals.

4. Attracting Diverse and Skilled Board Members

Introducing skilled experts on to your Board can improve the NFP’s efficiency in generating returns on capital employed, which should improve the organisations reserves. Specialists could be assigned to sub-committees that make recommendations to the Board. However, appointing too many non-executive Board Members may result in challenges in the decision-making process.


New options for funding for not for profit organisations

The challenges facing the industry have led to the emergence of new options for funding for not for profit organisations. These are relatively new to the Australian market but have proved successful in overseas markets (with experts predicting they will grow in popularity at home) and are therefore worth considering as part of your strategy to improve financial sustainability:

1. Social Benefit Bonds

Social benefit bonds (SBB) are a type of ‘payment by outcomes’ funding mechanism that engages private capital. Typically, instead of a government paying directly for the provision of a social service, private investors provide capital to a service provider to achieve agreed-upon social outcomes. If these outcomes are achieved, the Government pays the upfront investment along with a financial return.

The attractiveness for Government is risk mitigation, cash flow management and the potential to promote innovation in service delivery via public-private partnerships. The benefit for NFPs is that the Government is more comfortable putting forward new and additional funding when the outcome of the investment is guaranteed.

Whilst SBBs have been popular in the US and UK, they are still in their relative infancy in Australia. In the past few years we have seen a successful $7m pilot programme in New South Wales to assist foster care families as well as three SBBs in Queensland in reoffending, homelessness and issues facing Aboriginal and Torres Strait Islander People. The Australian Government just released a discussion paper on Social Impact Investing in January 2017 to explore options to expand the number of affordable housing options in Australia, based on the UK model.

To be successful in pursuing this type of funding you need to be able to demonstrate confidence to private investors. This starts with transparent and accurate financial records.

2. Crowdfunding

Crowdfunding allows NFPs to set up an online fundraising campaign based on a specific project or program; this allows people to make a secure donation to the organisation via a third party website.

In Australia, crowdfunding has seen growth in donations per annum in excess of 300% in the past two years. This growth is attributed to the shift in fundraising through digital, mobile and social media, as oppose to the traditional method of ‘shaking the tin’ on street corners. NFPs can spread their message to the public much wider than before (even internationally), in order to expand their fundraising scope for the benefit of their programs.

Industry commentators highlight that the rise of crowdfunding is a reflection of the innovation currently being experienced in the NFP sector. Whilst this method may not suit all NFPs, it certainly is an option for additional fundraising sources that should be considered by NFPs to improve their organisation’s ability to attract income.

Achieving financial sustainability is no easy task for NFP entities which is probably why it is the top issue concerning today’s NFP leaders. Each of the above strategies has opportunities and drawbacks. To make sure that you are informed on the best options for funding for not for profit organisations like yours, it is important to engage your accountant in any funding decisions.

The team at MGI South Queensland in have a specialist interest in supporting the needs of not for profit organisations. Give Steve Greene or Graeme Kent a call on 07 3002 4800 to find out how we can help your NFP navigate these challenges.

Given the importance of food and drink sales in the overall success of a club, it is little wonder that management and staff need to continually be focused on inventory management. Successfully managing your inventory can dramatically improve the financial performance of your club.

As an external auditor to clubs, I’d like to share those practical things that are done in successful clubs that may help improve your own club’s financial performance.


Get your purchasing right

Large amounts of critical working capital can be unnecessarily tied up in stock balances. While buying in bulk can be great for securing a better price on a stocked item, it could also be hurting your cash flows. There is nothing worse than having stock sitting on the shelf collecting dust that no one is likely to use. Think of some wines in your stock holdings – every club has at least a few old bottles lying around.

There is a fine line between having too much stock tying up critical cash flows and not having enough stock resulting in shortages and potentially missing out on sales

So how do you determine what is the right level of stock? For clubs that have a real time inventory system, it is generally easy to find a report which identifies stock items that have not been sold for quite some time. Such a report, often called an inventory turnover report, can highlight those stock items that have been sitting around too long and need to be moved on. This allows for staff to discount the item in an attempt to sell the stock.

Another way of monitoring stock purchases is to review the level of sales of particular items in order to minimise any future purchases. This can also involve setting a minimum purchase function within the accounting software that alerts staff when stock is almost out, limiting the potential of excess purchasing when stock is already held by the club.

In smaller clubs where the accounting system is not as sophisticated, stock levels tend to only be updated once a stock count has occurred.

If this is a situation which is all too familiar, managing your stock becomes even more critical, as information regarding sales and purchasing trends are not readily available. In such situations, practical approaches to monitoring stock include:

Conducting regular stocktakes

Reviewing holdings of your largest stock balances – the 80:20 rule applies here. Generally 80% of a clubs income will come from 20% of the stock lines. Ensure that unnecessary stock lines being held are either eliminated or held to a very minimum.

Comparing stock items to monthly sales: is the club holding more than a months’ worth of sales at any one time. Ensure that purchases are kept to a minimum.


Minimise Waste

Waste unfortunately occurs within most clubs. However, the key to minimising it is to monitor waste as much as possible.

Areas where waste occurs that you may not recognise include:

  • Giving away free drinks: do you record how many of these are given away through promotions? Does your club know exactly the cost of such an offer, and factor these into your selling prices?
  • Purchasing perishable foods before they’re needed. There is nothing worse than ordering in new stock only to realise that you already had some in the fridge/ freezer which was about to expire.
  • Having old or inefficient bar taps/lines. Do you know the impact having inefficient bar taps/lines is having on your club? Are they being cleaned regularly to ensure optimal performance, minimise waste and ensure maximum taste for the beer?

Counting Stock Regularly

As we draw ever so close to the end of the financial year for many organisations, it is a timely reminder of the importance of having a regular stocktake. While conducting a stocktake can be a time-consuming process, there are many benefits to undertaking one regularly and not just due to it being the end of the financial year. These include:

  • Highlighting any problems with stock shrinkages or obsolescence. This allows staff to address these concerns on a timely basis, minimising the potential impact to the club.
  • Helping determine how well the club has performed and assisting with the calculation of your gross profit (which will determine whether or not you are charging enough for your food/bar stock items).
  • Providing an accurate picture of your stock holdings and helping easily determine whether you are carrying too much of any particular items.
  • Highlighting sales performance on products allowing staff to change sales strategies.
  • Helping reduce the amount of stock levels held by your club, reducing stock purchases and freeing up valuable cash.
  • Helping with your stock purchasing process. Ensuring that you only purchase those stock items that you actually need.
  • Allowing accurate monthly financial information to be given to the Secretary/ Manager and the Board.

While undertaking regular stocktakes can be a somewhat time consuming process, the benefits associated with doing it regularly mean that all clubs, no matter what their size should undertake one regularly.


Safety of Stock

How safe is your stock? At any one time your club is likely to have large amounts of money tied up in stock, which can be located in multiple places, be it in the kitchen, multiple different bars, function rooms and bulk storage. Do you know who has access to your stock at any point in time? Can stock be accessed after hours? Do you have adequate controls around this process?

Amongst the most practical ways I have seen clubs secure their stock include:

  • Locking high dollar stock items away with keys only given to managers or senior staff.
  • Maintaining a log of those staff who have keys and access to stock after trading hours.
  • Restricting access to stock items to only those employees that actually need access e.g. bar and kitchen staff.
  • Having regular training sessions with staff regarding the importance of stock security.
  • Having CCTV’s in areas where stock is stored.
  • Conducting regular stocktakes
  • Regularly reviewing the gross profit margins and any variations in stock balances and seeking explanations from staff if regular variations occur.

By undertaking some of the above practical procedures, you can ensure that your club achieves the maximum financial performance out of its food and beverage operations.

Have you recently read through your clubs financial statements and been confused as to what it all means? If you have, don’t worry, you’re not alone.

As an external auditor to many organisations in the hospitality and not-for-profit sectors, I often hear that the financial statements now are too complex, no longer relevant to our members and why can’t we just go back to having a simple profit and loss and balance sheet like we use to?

While I’d love nothing more than to be able to tell you that financial statements will return to less complex days, unfortunately that isn’t the case. Australian Accounting Standards (which in many ways mirror the International Financial Reporting Standards) are here to stay and generally need to be applied in preparing your financial statements. However, there is good news afoot.

Recently the accounting standards settings approved the reduced disclosure regime framework, which allows your financial statements to have significantly less disclosure than before (however you still must apply those sections that are integral to the valuation or measurement of any asset or liability). As a result of these changes financial statements can now remove much of the detailed disclosure including:

  • Removal of most (in some instances) of the disclosure surrounding the clubs financial instruments (which the exception of information around any borrowings and credit facilities your club may utilise.
  • Removal of the capital management disclosure, future capital and expenditure commitments, auditor remuneration and new accounting standards for future periods
  • Removal of the cash flow note reconciliation of operating cash flows
  • Removal of the property, plant and equipment roll forward for the prior year (however, you must still have that information disclosed for the current year)
  • Removal of large sections of key management personal remuneration and some related party transaction disclosures
  • Some disclosures of impairment, particularly around goodwill, intangibles and some property, plant and equipment

From our experience, the application of reduced disclosure has removed has helped the number of pages within the financial statement to reduce by up to 20%. We still believe these can be reduced even further, however, the debate still continues with the profession and our accounting standard setters as to whether it should go further. My advice to you would be to watch this space! If in doubt, talk to your auditor or accountant as he/ she should be aware of these developments.


Key Areas

While the core of your financial statements remains much the same, there are areas that all Board members should look out for in their clubs annual report, which reveals the fundamental health of the organisation. Some of the key areas I regularly discuss with my clients include:

  • Gross profit margin (particularly on food and bar operations): The gross profit is calculated as the gross profit (being sales less purchases) divided by revenue. If this ratio has a trend of declining it could indicate that either costs are growing faster than revenues and it might be time to review your prices or possibly that there is an increase in spoilage of stock, due to poor inventory management, over ordering or product or slippage of stock.
  • Cash flow from operating activities: operating activities are the core of your club. It represents your bar, kitchen, gaming and other key operations of the club (such as sporting activities etc). Cash flows from these operations are key as they show whether your club is generating enough free cash flows to fund its operations, as well as key expansion/ refurbishment plans.
  • Wages to income ratios: Wages represent one of the single biggest costs to any club. A simple analysis of total wages costs divided by total income will give you a quick and easy way of assessing whether your club is over/ under staffed, or whether wages are rising at a faster pace than revenues. This can be a powerful tool in assessing the future staffing needs of your club and one that should be monitored on a regular basis.
  • Current Asset Ratio: The current asset ratio is calculated as current assets dividend by current liabilities. It should generally always be greater than 1, which indicates that your club has at least $1 of current assets to cover every $1 of current liabilities. This calculation helps assess the solvency of the club and the ability of it to trade comfortably into the future.
  • Loan Requirements: If your club does have external debt (particularly if you have financed a recent refurbishment or extension), the bank will generally impose a number of requirements on you.

Generally speaking these include a loan-to-value ratio, an interest times cover and a debt coverage ratio (earnings divided by total loan repayments). In addition the bank generally undertakes an annual review, which includes not only looking at the past year’s results of the club, but also at your forecasted budgets for the next 1-2 years. Obviously when dealing with any bank, it is critical to ensure that these covenants are monitored regularly to make sure the club has a happy and successful financial future.

By looking at the above 5 areas within your financial statements, management and yourself can get a significantly better understanding of what’s going on in your club and can form strategies to improve the financial results. Your financial statements are much more than just your profit and I’d encourage you to have open and regular communication with both your management team at the club and your external advisors such as your auditor or accountant. They can help you understand and walk you through the complexity that is your financial statements.

If you would like a free consultation or support in this area, don’t hesitate to contact me.

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