Colin Hunter MRICS IRRV (Hons) is Divisional Director at Lambert Smith Hampton
Charities and not-for-profit organisations can benefit from several reliefs and tax breaks under both Council Tax and Business Rates legislation.
What reliefs are available?
Reliefs for Council Tax are limited to unoccupied properties that have been vacant for a period of less than six months. The relief is expressed as an exemption which automatically ends after six months or when someone moves in.
Business Rates provide a wider range of reliefs, with charities able to claim 80% relief from business rates if they use the property wholly, or mainly, for charitable purposes. If the property is unoccupied, charitable organisations can claim 100% relief from empty rates providing the intention is to use it for charitable purposes in the future.
Charities looking to generate commercial income from properties they own should be aware that this may place them at risk of losing the reliefs they would normally hope to receive.
In previous years, local authorities would normally give the various reliefs without too many questions. However, councils are now asking far more probing questions before granting reliefs and many even take away reliefs that have been given for many years.
The most obvious reason for this change in attitude is the impact of years of austerity and reduction in council funding. But, because councils have been fairly laid back historically means that the boundaries of reliefs have not been tested to any great extent and the legislation is lacking precise definitions.
Basing the test for Council Tax exemption on the definition of an exempt property, that is “A dwelling owned by a body established for charitable purposes only, which is unoccupied and has been so for less than six months and was last occupied in furtherance of the objects of the charity”, appears to be fairly straightforward.
However, in a recently decided case by the Valuation Tribunal for England, three elements of the test were accepted:
- The property was owned by the claimant;
- The claimant was a charity; and;
- The property was vacant for a period of less than six months.
The claim failed at the last hurdle.
The last hurdle requires the charity to prove that when last occupied, the occupation was in furtherance of the objects of the charity. For a housing charity this may well be simple enough, but for other charities it may prove to be an impassable barrier.
In a recently reported Valuation Tribunal for England case, The Appellant and Gateshead Metropolitan Council  4505M218075/254C, the unnamed appellant was a charity whose objectives were:
- The advancement of Orthodox Jewish religious education;
- The advancement of Orthodox Jewish faith;
- The relief of the poor, sick and feeble amongst members of the Jewish faith in any part of the world; and
- Such other purposes as are charitable according to the laws of England and Wales as the Trustees may from time to time decide.
The case referred to a claim for exemption from Council Tax for a vacant flat that had been occupied by an army veteran in poor health. The veteran was not Jewish but it was accepted by the Tribunal that the fourth object of the charity could encompass a letting on a charitable basis to non-Jew. On examination of the evidence, the Tribunal accepted that the appellant: owned the property, was a charity, and that the property had been vacant for less than six months. However, it was held that the letting to the veteran was a standard commercial letting and not a letting for charitable purposes and the claim was rejected.
With regard to business rates, one of the leading cases still relied on by local authorities is the House of Lords decision in Oxfam v Birmingham City Council . This case dealt with claims for charitable relief for a number of shops occupied by Oxfam. The shops sold a range of goods; new products bought to sell at a profit; donated items, and; third world trade goods. The House of Lords considered the income streams from the three sets of goods and concluded that only the third world goods were linked to a charitable purpose of Oxfam due to its promotion of sustainable businesses in third world countries. The income from new goods was considered to be simple commercial activity for profit. The sale of donated goods was accepted as being fund raising for the charity. However, fundraising, whilst essential, is not a charitable purpose in its own right. The test for whether or not charitable relief applies is that the property must be “wholly or mainly used for charitable purposes” (section 43(6) Local Government Finance Act 1988). Therefore as the only charitable use accepted by the House of Lords was the sale of third world goods, which was a relatively minor part of the income, Oxfam’s appeal was rejected and charitable relief was refused. The rating law was changed following this case and now the sale of donated goods, where the net proceeds of sale are applied for charitable purposes, is defined as being a charitable purpose (Section 64 (10) Local Government Finance Act 1988).
The House of Lords test for the shops equated the proportion of income from sales income with the proportion of use. This is a useful test for a property occupied as a shop but how well does that translate to other uses and property types. Consider for example a large site used throughout the year for charitable purposes. But to raise funds the site is used regularly, perhaps only 5 or 6 days in the year, for fundraising activities. It is likely that the income from fund raising will be greater than the income from the rest of the year’s charitable activity. Should the proportion of income be equated with the proportion of use in such cases?
A more recent test of the phrase “wholly or mainly used for charitable purposes” was applied in the case of Kenya Aid Programme v Sheffield City Council , this was a High Court hearing as a judicial review of the decision of the Magistrates Court on a Liability Order. The Kenya Aid Programme collected and stored, for onward delivery to Africa, office and other furniture and goods. It was accepted that Kenya Aid Programme (KAP) is a charity. The property occupied by KAP was two large warehouses which had been vacant for some time. The landlord let the buildings to the charity on preferential terms in order to avoid paying empty property rates. KAP applied for, and were refused, charitable relief. The argument at the Magistrates Court by Sheffield Council was that this was an avoidance scheme and in any case, if properly stored, the furniture would take up less than 50% of the floor space within the warehouses. The Magistrate found in favour of the Council and KAP applied for judicial review. The High Court found that the Magistrate had had regard to matters which were not relevant and quashed the decision. Unfortunately, when the Magistrate re-heard the case for the Liability Order, they still found for Sheffield Council but on different grounds. However from this case it could be argued that the proportion of use can be equated to the floor area occupied for the charitable purposes.
I have been involved in advising arts charities who occupy vacant commercial space on favourable terms to allow the landlord to avoid paying empty rates. Each case turned on its own facts. The charities used the space for various functions including as galleries, teaching spaces, studios and workshops. A number of Councils have been happy to grant charitable relief but others across the country have resisted. In one case, the Council refused to grant relief on a space used as a gallery because the only occupation was a few pictures on the walls. Applying a test of the proportion of floor space used for charitable purposes, being restricted to the paintings on the walls, the council defended the decision to refuse to grant relief. The council eventually conceded that the whole purpose of occupation of the space was as a gallery (i.e. including the space for visitors to stand so that they could see the art work on the walls) and relief was granted.
The Charity Commission recommend that charities have trading subsidiaries to enable any trading income to be segregated from the charitable activities, and also for the corporation tax benefit due to the profit of the subsidiary being gifted to the charity at the end of the year. When a property is in shared use this can complicate the request for reliefs. It raises the question, “who is the rateable occupier, the charity or the trading subsidiary?” This is not a simple question and comes down to which of the two has general control of the shared space. If the trading subsidiary is regarded as being the occupier then there will be no relief. If the charity is the occupier then how is the proportion of use to be measured. If only income is taken into account the subsidiary may well have the larger proportion. If the amount of space, or the length of time that each uses the property is taken into account then the charity is likely to be the larger proportion. Therefore the decision on whether relief is to be granted will be determined by how the council chose to measure “use”.
For vacant properties, if the charity is the owner, meaning either freehold or leasehold, and the intention when next occupied is to use the property “wholly or mainly for charitable purposes”, the property is exempt from empty rates, i.e. 100% relief.
Once the property becomes occupied by the charity and the use is established to be wholly or mainly for charitable purposes the level of relief falls to 80%. But what happens if the charity moves in in phases or moves out in phases. Until the test of “wholly or mainly” can be fulfilled there will be no relief. So the Charity can go from an having an empty building with 100% relief, to a partly occupied building with no relief to a fully occupied building with 80% relief.
There are lessons to be learned and pitfalls to be avoided.
When letting a residential property, if a charity wants to be able to claim exemption from Council Tax when the property is vacant, then the initial letting must be clearly set out in a way that is consistent with its charitable objectives and not just a source of income.
When occupying non-domestic properties, the use that the property is put to must be mainly for charitable purposes. It is unlikely that it will ever be wholly for charitable purposes because fund raising isn’t a charitable purpose but there will almost certainly be some fund raising activity or accommodation for fund raising staff in the property. It is arguable how “use” is to be measured whether it is on a floor area, time or income basis. Income is the most difficult basis to rely on because by the very nature of charitable activities, income from commercial uses will be likely to be more than charitable income. Therefore, records need to be kept to demonstrate that the charitable use is the main use irrespective of income. Care must also be taken when granting rights to trading subsidiaries to ensure that the charity and not the trading company are the rateable occupier.
Empty non-domestic properties are simpler. As long as the charity can show an intention to fully occupy the property for charitable purposes then 100% relief should be given. If the property is being marketed to let or for sale, then the clear intention is not to occupy it but to dispose of it and there will be no relief. The simple message is that if a charity intends to dispose of a property, it should remain in occupation until the lease or sale is agreed.
If a charity is moving into a new property then care must be taken to ensure that from the date of occupation the property is mainly being used for charitable purposes even if it is not going to be fully occupied from day one.
As I mentioned at the outset, the attitude of Councils towards giving relief has changed and is continuing to change. There will be more litigation, especially for business rates, and from that we may have better guidance on how to determine what is and is not “wholly or mainly used for charitable purposes”. But decisions need to be made without waiting for that litigation and using best judgement. The clear advice is that charities cannot take exemptions and reliefs for granted and must carefully assess what use they are making of their existing properties giving careful thought to whether new properties will be mainly used for the charities purpose before taking the property, or in the case of residential properties before letting them.