Charity application rejected

[Andrew Turvey-2]

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Dear All,

Yesterday we received a letter from the UK Tax Authorities rejecting our application for recognition as a charity. Citing a legal precedent, they stated that "the production of an encyclopaedia is not the charitable advancement of education" and therefore we were not established for exclusively charitable purposes. The ruling they gave stated that "If the object be the mere increase of knowledge it is not in itself a charitable object unless it is combined with teaching or education".

The full letter from the HMRC is copied below with some explanatory notes added in { }

Their objection goes to the heart of what we have been established to do. On the surface, it does not appear that any different wording in our constitution or correspondence would have given us a different outcome. Nonetheless, the legal issues may be arguable - our job is not just to produce content in isolation, but also to spread that knowledge and make it accessible to all. I should imagine this will come down to the finer points of law, and it is probably best to engage a lawyer at this stage when we appeal.

If we had applied to the Charity Commission before HMRC the application would have been considered by different lawyers but the same law would apply. Therefore, it is likely that we would have come up against the same problem.

I'm contacting the Foundation to ask them if they are aware of any lawyers familiar with UK law who could help us pro-bono on this.

I'm also sending a note to our MP to thank him for his help in speeding this up: although it is disappointed to get this response, it is better to get it now that in 3 or 6 months' time.

In the meantime, we should probably stop referring to ourselves as a "charity" or an "exempt charity". Before receiving this letter it was reasonable for us to do this as that was our honest view. Now we know there is some disagreement over this, I suggest we should describe ourselves as a "not-for-profit" instead. Whilst we can still get Gift Aid declarations (HMRC have previously confirmed this was ok) we should probably add a caveat on the form explaining that our charitable status is contested.

Regards,

Andrew Turvey
Secretary, Wikimedia UK

=========================

Company Secretary
Wikimedia UK
23 Cartwright Way
Beeston
Nottingham NG9 1RL

Date: 17 April 2009

Dear Mr Turvey,

Wiki UK Limited (operating name Wikimedia UK)

Thank you for your letter of 4 March 2009 and enclosures. I am sorry for the delay in replying.

I am aware that you have written to Nick Palmer MP {regarding delays in responding} - a reply to that letter will be sent separately to Nick Palmer MP.

The definition of a charitable company for tax purposes is contained at Section 506(1) Income and Corporation Taxes Act 1988 which states " 'charitable company' means any body of persons established for charitable purposes only". However, the determination of charitable status is a matter of general law.

To be a charity in law it is not sufficient that a company's activities or intended activities are charitable. The memorandum and articles of association of the company must declare objects that are charitable in law and be otherwise in acceptable charitable form so that the company could only carry out charitable activities.

The objects of Wiki UK Ltd are stated at clause 3 of its memorandum of association:

"The charity's Object is to aid and encourage people to collect, develop and effectively disseminate knowledge and other educational, cultural and historic content in the public domain or under a license that allows everyone to freely use, distribute and modify content, by means including (but not limited to):

[9 ways are them listed - for example 'acting as a voice and representative for the community of UK residents and citizens who use and edit such repositories'] "

In your letters of 23 November 2008 and 4 March 2009 you state that the primary purpose of setting up the company is to support the 'Wikipedia' website. {We actually said "support the “Wikipedia” website and the other projects of the Wikimedia Foundation, in ways that are compatible with UK charity law"}

The stated objects are not charitable in law. The production of an encyclopaedia is not the charitable advancement of of education and has not been accepted as such in law. In Re Shaw [1957] 1 WLR 729 Mr Justice Harman said "If the object be the mere increase of knowledge it is not in itself a charitable object unless it is combined with teaching or education". Nor is the support the Wikipedia, the stated primary purpose of Wiki UK Ltd, a charitable purpose.

Wiki UK Ltd is not established for charitable purposes only as required by the legislation and so is not a charity for tax purposes. The charity tax examptions and reliefs (including Gift Aid tax relief) are not, therefore, available to Wiki UK Ltd.

To help us improve customer service, please quote our reference number and provide a daytime telephone number in any correspondence.

Yours sincerely,


Higher Officer, Technical

_______________________________________________
Wikimedia UK mailing list
wikimediauk-l@...
http://mail.wikimedia.org/mailman/listinfo/wikimediauk-l
WMUK: http://uk.wikimedia.org

[Michael Peel-2]

This is crazy. :-/ Where to start?

First, fundamentally, the aim of pretty much everything is to  
increase knowledge. Teaching/education is merely a means to  
communicate that to people, which is something that an encyclopaedia  
natively does. To say that producing an encyclopaedia does not  
advance education - especially considering that this is Wikipedia,  
which has a huge impact - is simply wrong.

Second, learning how to write an encyclopaedia - something that  
everyone who contributes to Wikipedia does - is inherently an  
educational experience. To support that naturally supports the  
advancement of education. To quote a law from 1957 - over 50 years  
ago - simply shows how out of date the law, and hence the goverment,  
is in this respect.

Third, we're not all about Wikipedia. We're about the Wikimedia  
Movement, or even more generally, the free culture movement. That  
incorporates a much wider range of projects, including Wikiversity  
whose aim is explicitly to educate people, and a load of other  
projects that do this to a lesser extent.

Fourth, stating that "the support the Wikipedia" is "the stated  
primary purpose of Wiki UK Ltd" is simply wrong; where does it even  
mention "Wikipedia" in our MoA/AoA?

(There are more points, but I'm too tired right now to phrase them  
coherently...)

We should definitely respond to HMRC about this; getting lawyers  
involved seems to be a very good idea. Is it worth contacting  
LawWorks regarding this?

If we don't get anywhere with HMRC, then we should take this to the  
media - they'll have a field day with this.

Mike

On 24 Apr 2009, at 21:59, Andrew Turvey wrote:

> Dear All,
>
> Yesterday we received a letter from the UK Tax Authorities  
> rejecting our application for recognition as a charity. Citing a  
> legal precedent, they stated that "the production of an  
> encyclopaedia is not the charitable advancement of education" and  
> therefore we were not established for exclusively charitable  
> purposes. The ruling they gave stated that "If the object be the  
> mere increase of knowledge it is not in itself a charitable object  
> unless it is combined with teaching or education".
>
> The full letter from the HMRC is copied below with some explanatory  
> notes added in { }
>
> Their objection goes to the heart of what we have been established  
> to do. On the surface, it does not appear that any different  
> wording in our constitution or correspondence would have given us a  
> different outcome. Nonetheless, the legal issues may be arguable -  
> our job is not just to produce content in isolation, but also to  
> spread that knowledge and make it accessible to all. I should  
> imagine this will come down to the finer points of law, and it is  
> probably best to engage a lawyer at this stage when we appeal.
>
> If we had applied to the Charity Commission before HMRC the  
> application would have been considered by different lawyers but the  
> same law would apply. Therefore, it is likely that we would have  
> come up against the same problem.
>
> I'm contacting the Foundation to ask them if they are aware of any  
> lawyers familiar with UK law who could help us pro-bono on this.
>
> I'm also sending a note to our MP to thank him for his help in  
> speeding this up: although it is disappointed to get this response,  
> it is better to get it now that in 3 or 6 months' time.
>
> In the meantime, we should probably stop referring to ourselves as  
> a "charity" or an "exempt charity". Before receiving this letter it  
> was reasonable for us to do this as that was our honest view. Now  
> we know there is some disagreement over this, I suggest we should  
> describe ourselves as a "not-for-profit" instead. Whilst we can  
> still get Gift Aid declarations (HMRC have previously confirmed  
> this was ok) we should probably add a caveat on the form explaining  
> that our charitable status is contested.
>
> Regards,
>
> Andrew Turvey
> Secretary, Wikimedia UK
>
> =========================
>
> Company Secretary
> Wikimedia UK
> 23 Cartwright Way
> Beeston
> Nottingham NG9 1RL
>
> Date: 17 April 2009
>
> Dear Mr Turvey,
>
> Wiki UK Limited (operating name Wikimedia UK)
>
> Thank you for your letter of 4 March 2009 and enclosures. I am  
> sorry for the delay in replying.
>
> I am aware that you have written to Nick Palmer MP {regarding  
> delays in responding} - a reply to that letter will be sent  
> separately to Nick Palmer MP.
>
> The definition of a charitable company for tax purposes is  
> contained at Section 506(1) Income and Corporation Taxes Act 1988  
> which states " 'charitable company' means any body of persons  
> established for charitable purposes only". However, the  
> determination of charitable status is a matter of general law.
>
> To be a charity in law it is not sufficient that a company's  
> activities or intended activities are charitable. The memorandum  
> and articles of association of the company must declare objects  
> that are charitable in law and be otherwise in acceptable  
> charitable form so that the company could only carry out charitable  
> activities.
>
> The objects of Wiki UK Ltd are stated at clause 3 of its memorandum  
> of association:
>
> "The charity's Object is to aid and encourage people to collect,  
> develop and effectively disseminate knowledge and other  
> educational, cultural and historic content in the public domain or  
> under a license that allows everyone to freely use, distribute and  
> modify content, by means including (but not limited to):
>
> [9 ways are them listed - for example 'acting as a voice and  
> representative for the community of UK residents and citizens who  
> use and edit such repositories'] "
>
> In your letters of 23 November 2008 and 4 March 2009 you state that  
> the primary purpose of setting up the company is to support the  
> 'Wikipedia' website. {We actually said "support the “Wikipedia”  
> website and the other projects of the Wikimedia Foundation, in ways  
> that are compatible with UK charity law"}
>
> The stated objects are not charitable in law. The production of an  
> encyclopaedia is not the charitable advancement of of education and  
> has not been accepted as such in law. In Re Shaw [1957] 1 WLR 729  
> Mr Justice Harman said "If the object be the mere increase of  
> knowledge it is not in itself a charitable object unless it is  
> combined with teaching or education". Nor is the support the  
> Wikipedia, the stated primary purpose of Wiki UK Ltd, a charitable  
> purpose.
>
> Wiki UK Ltd is not established for charitable purposes only as  
> required by the legislation and so is not a charity for tax  
> purposes. The charity tax examptions and reliefs (including Gift  
> Aid tax relief) are not, therefore, available to Wiki UK Ltd.
>
> To help us improve customer service, please quote our reference  
> number and provide a daytime telephone number in any correspondence.
>
> Yours sincerely,
>
>
> Higher Officer, Technical
>
>

_______________________________________________
Wikimedia UK mailing list
wikimediauk-l@...
http://mail.wikimedia.org/mailman/listinfo/wikimediauk-l
WMUK: http://uk.wikimedia.org

[Thomas Dalton]

(Did you intend to send that to the public list? Either way, it's here
now, so replying on-list.)

The law is fine, it's just being misapplied. Writing an encyclopaedia
doesn't increase knowledge, it's a tertiary source, all the knowledge
is already in existence. It disseminates knowledge, something I
consider to be pretty synonymous with "education". I think at this
point we need a lawyer. I'll look up that case and see if I can find
the details, but really we need someone can that combat legal nonsense
with more legal nonsense - I can only illegal nonsense!

2009/4/25 Michael Peel <email@...>:

> This is crazy. :-/ Where to start?
>
> First, fundamentally, the aim of pretty much everything is to
> increase knowledge. Teaching/education is merely a means to
> communicate that to people, which is something that an encyclopaedia
> natively does. To say that producing an encyclopaedia does not
> advance education - especially considering that this is Wikipedia,
> which has a huge impact - is simply wrong.
>
> Second, learning how to write an encyclopaedia - something that
> everyone who contributes to Wikipedia does - is inherently an
> educational experience. To support that naturally supports the
> advancement of education. To quote a law from 1957 - over 50 years
> ago - simply shows how out of date the law, and hence the goverment,
> is in this respect.
>
> Third, we're not all about Wikipedia. We're about the Wikimedia
> Movement, or even more generally, the free culture movement. That
> incorporates a much wider range of projects, including Wikiversity
> whose aim is explicitly to educate people, and a load of other
> projects that do this to a lesser extent.
>
> Fourth, stating that "the support the Wikipedia" is "the stated
> primary purpose of Wiki UK Ltd" is simply wrong; where does it even
> mention "Wikipedia" in our MoA/AoA?
>
> (There are more points, but I'm too tired right now to phrase them
> coherently...)
>
> We should definitely respond to HMRC about this; getting lawyers
> involved seems to be a very good idea. Is it worth contacting
> LawWorks regarding this?
>
> If we don't get anywhere with HMRC, then we should take this to the
> media - they'll have a field day with this.
>
> Mike
>
> On 24 Apr 2009, at 21:59, Andrew Turvey wrote:
>
>> Dear All,
>>
>> Yesterday we received a letter from the UK Tax Authorities
>> rejecting our application for recognition as a charity. Citing a
>> legal precedent, they stated that "the production of an
>> encyclopaedia is not the charitable advancement of education" and
>> therefore we were not established for exclusively charitable
>> purposes. The ruling they gave stated that "If the object be the
>> mere increase of knowledge it is not in itself a charitable object
>> unless it is combined with teaching or education".
>>
>> The full letter from the HMRC is copied below with some explanatory
>> notes added in { }
>>
>> Their objection goes to the heart of what we have been established
>> to do. On the surface, it does not appear that any different
>> wording in our constitution or correspondence would have given us a
>> different outcome. Nonetheless, the legal issues may be arguable -
>> our job is not just to produce content in isolation, but also to
>> spread that knowledge and make it accessible to all. I should
>> imagine this will come down to the finer points of law, and it is
>> probably best to engage a lawyer at this stage when we appeal.
>>
>> If we had applied to the Charity Commission before HMRC the
>> application would have been considered by different lawyers but the
>> same law would apply. Therefore, it is likely that we would have
>> come up against the same problem.
>>
>> I'm contacting the Foundation to ask them if they are aware of any
>> lawyers familiar with UK law who could help us pro-bono on this.
>>
>> I'm also sending a note to our MP to thank him for his help in
>> speeding this up: although it is disappointed to get this response,
>> it is better to get it now that in 3 or 6 months' time.
>>
>> In the meantime, we should probably stop referring to ourselves as
>> a "charity" or an "exempt charity". Before receiving this letter it
>> was reasonable for us to do this as that was our honest view. Now
>> we know there is some disagreement over this, I suggest we should
>> describe ourselves as a "not-for-profit" instead. Whilst we can
>> still get Gift Aid declarations (HMRC have previously confirmed
>> this was ok) we should probably add a caveat on the form explaining
>> that our charitable status is contested.
>>
>> Regards,
>>
>> Andrew Turvey
>> Secretary, Wikimedia UK
>>
>> =========================
>>
>> Company Secretary
>> Wikimedia UK
>> 23 Cartwright Way
>> Beeston
>> Nottingham NG9 1RL
>>
>> Date: 17 April 2009
>>
>> Dear Mr Turvey,
>>
>> Wiki UK Limited (operating name Wikimedia UK)
>>
>> Thank you for your letter of 4 March 2009 and enclosures. I am
>> sorry for the delay in replying.
>>
>> I am aware that you have written to Nick Palmer MP {regarding
>> delays in responding} - a reply to that letter will be sent
>> separately to Nick Palmer MP.
>>
>> The definition of a charitable company for tax purposes is
>> contained at Section 506(1) Income and Corporation Taxes Act 1988
>> which states " 'charitable company' means any body of persons
>> established for charitable purposes only". However, the
>> determination of charitable status is a matter of general law.
>>
>> To be a charity in law it is not sufficient that a company's
>> activities or intended activities are charitable. The memorandum
>> and articles of association of the company must declare objects
>> that are charitable in law and be otherwise in acceptable
>> charitable form so that the company could only carry out charitable
>> activities.
>>
>> The objects of Wiki UK Ltd are stated at clause 3 of its memorandum
>> of association:
>>
>> "The charity's Object is to aid and encourage people to collect,
>> develop and effectively disseminate knowledge and other
>> educational, cultural and historic content in the public domain or
>> under a license that allows everyone to freely use, distribute and
>> modify content, by means including (but not limited to):
>>
>> [9 ways are them listed - for example 'acting as a voice and
>> representative for the community of UK residents and citizens who
>> use and edit such repositories'] "
>>
>> In your letters of 23 November 2008 and 4 March 2009 you state that
>> the primary purpose of setting up the company is to support the
>> 'Wikipedia' website. {We actually said "support the “Wikipedia”
>> website and the other projects of the Wikimedia Foundation, in ways
>> that are compatible with UK charity law"}
>>
>> The stated objects are not charitable in law. The production of an
>> encyclopaedia is not the charitable advancement of of education and
>> has not been accepted as such in law. In Re Shaw [1957] 1 WLR 729
>> Mr Justice Harman said "If the object be the mere increase of
>> knowledge it is not in itself a charitable object unless it is
>> combined with teaching or education". Nor is the support the
>> Wikipedia, the stated primary purpose of Wiki UK Ltd, a charitable
>> purpose.
>>
>> Wiki UK Ltd is not established for charitable purposes only as
>> required by the legislation and so is not a charity for tax
>> purposes. The charity tax examptions and reliefs (including Gift
>> Aid tax relief) are not, therefore, available to Wiki UK Ltd.
>>
>> To help us improve customer service, please quote our reference
>> number and provide a daytime telephone number in any correspondence.
>>
>> Yours sincerely,
>>
>>
>> Higher Officer, Technical
>>
>>
>
>
> _______________________________________________
> Wikimedia UK mailing list
> wikimediauk-l@...
> http://mail.wikimedia.org/mailman/listinfo/wikimediauk-l
> WMUK: http://uk.wikimedia.org
>

_______________________________________________
Wikimedia UK mailing list
wikimediauk-l@...
http://mail.wikimedia.org/mailman/listinfo/wikimediauk-l
WMUK: http://uk.wikimedia.org

[Michael Bimmler]

On Fri, Apr 24, 2009 at 4:15 PM, Michael Peel <email@...> wrote:

> Second, learning how to write an encyclopaedia - something that
> everyone who contributes to Wikipedia does - is inherently an
> educational experience. To support that naturally supports the
> advancement of education. To quote a law from 1957 - over 50 years
> ago - simply shows how out of date the law, and hence the goverment,
> is in this respect.
>

To be fair with them: It was a court case, I am pretty sure changes
have been made to the applicable law since then, but apparently not to
this particular part of it (resp. its interpretation). You can of
course try to make a precedent case out of this, by pursuing it up to
the higher courts.

Is there any indication in the letter as to what the options are? From
a quick glance at the HMRC website, it seems that their Complaints
procedure would not apply, as we're talking about a formal decision
here. They have two internal procedures, called 'Review' and 'Appeal'.
It should be marked in the letter whether there is a Review option (by
HMRC itself) or an Appeal option to the independent tribunal
(http://www.tribunals.gov.uk/tax/).
It is possible that both of them are not available, which means that
we would need to seek Judicial Review at the Administrative Division
of the High Court...we definitely want to have a lawyer at least for
Appeal or Judicial Review, and it would be good for HMRC-internal
review.

M.
--
Michael Bimmler
mbimmler@...

_______________________________________________
Wikimedia UK mailing list
wikimediauk-l@...
http://mail.wikimedia.org/mailman/listinfo/wikimediauk-l
WMUK: http://uk.wikimedia.org

[Michael Bimmler]

On Fri, Apr 24, 2009 at 4:27 PM, Thomas Dalton <thomas.dalton@...> wrote:
> (Did you intend to send that to the public list? Either way, it's here
> now, so replying on-list.)
>
> The law is fine, it's just being misapplied. Writing an encyclopaedia
> doesn't increase knowledge, it's a tertiary source, all the knowledge
> is already in existence. It disseminates knowledge, something I
> consider to be pretty synonymous with "education". I think at this
> point we need a lawyer. I'll look up that case

For reference, the case is online here:
http://www.btinternet.com/~akme/shaw.html  though with terrible
markup. I'll look for LexisNexis sources and similar, but those are
typically not public, so I thought I'd share that one with the list.

M.

_______________________________________________
Wikimedia UK mailing list
wikimediauk-l@...
http://mail.wikimedia.org/mailman/listinfo/wikimediauk-l
WMUK: http://uk.wikimedia.org

[Thomas Dalton]

2009/4/25 Michael Bimmler <mbimmler@...>:

> On Fri, Apr 24, 2009 at 4:27 PM, Thomas Dalton <thomas.dalton@...> wrote:
>> (Did you intend to send that to the public list? Either way, it's here
>> now, so replying on-list.)
>>
>> The law is fine, it's just being misapplied. Writing an encyclopaedia
>> doesn't increase knowledge, it's a tertiary source, all the knowledge
>> is already in existence. It disseminates knowledge, something I
>> consider to be pretty synonymous with "education". I think at this
>> point we need a lawyer. I'll look up that case
>
> For reference, the case is online here:
> http://www.btinternet.com/~akme/shaw.html  though with terrible
> markup. I'll look for LexisNexis sources and similar, but those are
> typically not public, so I thought I'd share that one with the list.

I've found it on LexisNexis:

http://www.lexisnexis.com/uk/legal/results/docview/docview.do?docLinkInd=true&risb=21_T6406107890&format=GNBFULL&sort=BOOLEAN&startDocNo=151&resultsUrlKey=29_T6406107893&cisb=22_T6406107892&treeMax=true&treeWidth=0&csi=279841&docNo=152

(probably a better URL, but I don't know how to use LexisNexis!)

The case is about an attempt to form a charity to research inventing a
new alphabet for writing English which would have 40 characters and be
easier to use. The judge concluded that increasing knowledge is not
the same as education, which is entirely correct. The case is about
original research, it has nothing to do with encyclopaedias and does
not apply to them.

_______________________________________________
Wikimedia UK mailing list
wikimediauk-l@...
http://mail.wikimedia.org/mailman/listinfo/wikimediauk-l
WMUK: http://uk.wikimedia.org

[David Gerard-2]

2009/4/25 Thomas Dalton <thomas.dalton@...>:

> The case is about an attempt to form a charity to research inventing a
> new alphabet for writing English which would have 40 characters and be
> easier to use. The judge concluded that increasing knowledge is not
> the same as education, which is entirely correct. The case is about
> original research, it has nothing to do with encyclopaedias and does
> not apply to them.


Hopefully a lawyer will think the same. It's evident any attempt to
make a UK chapter charitable will likely need one.


- d.

_______________________________________________
Wikimedia UK mailing list
wikimediauk-l@...
http://mail.wikimedia.org/mailman/listinfo/wikimediauk-l
WMUK: http://uk.wikimedia.org

[Thomas Dalton]

2009/4/25 David Gerard <dgerard@...>:

> 2009/4/25 Thomas Dalton <thomas.dalton@...>:
>
>> The case is about an attempt to form a charity to research inventing a
>> new alphabet for writing English which would have 40 characters and be
>> easier to use. The judge concluded that increasing knowledge is not
>> the same as education, which is entirely correct. The case is about
>> original research, it has nothing to do with encyclopaedias and does
>> not apply to them.
>
>
> Hopefully a lawyer will think the same. It's evident any attempt to
> make a UK chapter charitable will likely need one.

Yeah, it looks that way. If anyone knows a good charity lawyer or
knows someone that knows a good charity lawyer, please speak up!

PS David, are you available to come on IRC a sec? If so, /msg me -
Tango42. Thanks

_______________________________________________
Wikimedia UK mailing list
wikimediauk-l@...
http://mail.wikimedia.org/mailman/listinfo/wikimediauk-l
WMUK: http://uk.wikimedia.org

[Brian McNeil-2]

Because WMUK would be so closely associated with the 501(c) WMF, I think
Mike Godwin should be pointed at this. I appreciate various factors may make
him unable to further involve himself, but you don't know what UK
legal-eagle contacts he can point your way.


Brian.

-----Original Message-----
From: wikimediauk-l-bounces@...
[mailto:wikimediauk-l-bounces@...] On Behalf Of Thomas
Dalton
Sent: 25 April 2009 01:45
To: wikimediauk-l@...
Subject: Re: [Wikimediauk-l] Charity application rejected

2009/4/25 Michael Bimmler <mbimmler@...>:
> On Fri, Apr 24, 2009 at 4:27 PM, Thomas Dalton <thomas.dalton@...>
wrote:

>> (Did you intend to send that to the public list? Either way, it's here
>> now, so replying on-list.)
>>
>> The law is fine, it's just being misapplied. Writing an encyclopaedia
>> doesn't increase knowledge, it's a tertiary source, all the knowledge
>> is already in existence. It disseminates knowledge, something I
>> consider to be pretty synonymous with "education". I think at this
>> point we need a lawyer. I'll look up that case
>
> For reference, the case is online here:
> http://www.btinternet.com/~akme/shaw.html  though with terrible
> markup. I'll look for LexisNexis sources and similar, but those are
> typically not public, so I thought I'd share that one with the list.

I've found it on LexisNexis:

http://www.lexisnexis.com/uk/legal/results/docview/docview.do?docLinkInd=tru
e&risb=21_T6406107890&format=GNBFULL&sort=BOOLEAN&startDocNo=151&resultsUrlK
ey=29_T6406107893&cisb=22_T6406107892&treeMax=true&treeWidth=0&csi=279841&do
cNo=152

(probably a better URL, but I don't know how to use LexisNexis!)

The case is about an attempt to form a charity to research inventing a
new alphabet for writing English which would have 40 characters and be
easier to use. The judge concluded that increasing knowledge is not
the same as education, which is entirely correct. The case is about
original research, it has nothing to do with encyclopaedias and does
not apply to them.

_______________________________________________
Wikimedia UK mailing list
wikimediauk-l@...
http://mail.wikimedia.org/mailman/listinfo/wikimediauk-l
WMUK: http://uk.wikimedia.org


_______________________________________________
Wikimedia UK mailing list
wikimediauk-l@...
http://mail.wikimedia.org/mailman/listinfo/wikimediauk-l
WMUK: http://uk.wikimedia.org

[Thomas Dalton]

2009/4/25 Brian McNeil <brian.mcneil@...>:
> Because WMUK would be so closely associated with the 501(c) WMF, I think
> Mike Godwin should be pointed at this. I appreciate various factors may make
> him unable to further involve himself, but you don't know what UK
> legal-eagle contacts he can point your way.

Yeah, worth letting him know what is going on, but last time I spoke
to Mike about UK lawyers he said the only ones he knew would charge
us. We would like someone pro-bono if at all possible.

_______________________________________________
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WMUK: http://uk.wikimedia.org

[Brian McNeil-2]

Then I suggest hitting contacts in local activist groups - eg ORG.


Brian.

-----Original Message-----
From: wikimediauk-l-bounces@...
[mailto:wikimediauk-l-bounces@...] On Behalf Of Thomas
Dalton
Sent: 25 April 2009 02:05
To: wikimediauk-l@...
Subject: Re: [Wikimediauk-l] Charity application rejected

2009/4/25 Brian McNeil <brian.mcneil@...>:
> Because WMUK would be so closely associated with the 501(c) WMF, I think
> Mike Godwin should be pointed at this. I appreciate various factors may
make
> him unable to further involve himself, but you don't know what UK
> legal-eagle contacts he can point your way.

Yeah, worth letting him know what is going on, but last time I spoke
to Mike about UK lawyers he said the only ones he knew would charge
us. We would like someone pro-bono if at all possible.

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[Thomas Dalton]

2009/4/25 Brian McNeil <brian.mcneil@...>:
> Then I suggest hitting contacts in local activist groups - eg ORG.

Yeah, I think Seddon is on that.

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[Andrew Gray-3]

2009/4/25 Thomas Dalton <thomas.dalton@...>:
>
> The law is fine, it's just being misapplied. Writing an encyclopaedia
> doesn't increase knowledge, it's a tertiary source, all the knowledge
> is already in existence. It disseminates knowledge, something I
> consider to be pretty synonymous with "education". I think at this
> point we need a lawyer. I'll look up that case and see if I can find
> the details, but really we need someone can that combat legal nonsense
> with more legal nonsense - I can only illegal nonsense!

I'm not sure I agree with the CC's decision, but it isn't a
particularly quixotic one in the context of existing charity law, and
I can see where it came from. Consider, for example, the notes at C4
here: http://www.charity-commission.gov.uk/publicbenefit/pbeduc.asp#c

"However, just giving people information is not necessarily educating
them. The key is whether it is provided in such a way (however
structured) that it is capable of educating them, rather than just
adding to factual information."

I think there are ways of interpreting this sort of thing so as to
encompass what we do, but it's not unreasonable for them to interpret
it differently. Note that there isn't really anything like us in any
of the lists of examples!

Approaching this from the position that the law is fundamentally being
misapplied, and we need to tell them they're Doing It Wrong, is
probably just going to set us up for some angry letters both ways, a
quick fall, and being filed as "vexatious" - and the last thing we
want is for us to blow the chance fully!

A more effective approach would, perhaps, be to closely compare our
submission to the regulations, and see if the use of a different
perspective on what we plan to do, or a broadening of our aims, would
perhaps fit more comfortably with the (slightly odd) letter of the
regulations. After all, we have to fit into charity law *as it exists*
if we're going to be a charity at all!

(...and on which note, hrm. if we're not a charity, what are the
practical implications of that? I assume with our small turnover it
wouldn't make a *vast* difference, but...)

--
- Andrew Gray
  andrew.gray@...

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[Thomas Dalton]

2009/4/25 Andrew Gray <andrew.gray@...>:

> 2009/4/25 Thomas Dalton <thomas.dalton@...>:
>>
>> The law is fine, it's just being misapplied. Writing an encyclopaedia
>> doesn't increase knowledge, it's a tertiary source, all the knowledge
>> is already in existence. It disseminates knowledge, something I
>> consider to be pretty synonymous with "education". I think at this
>> point we need a lawyer. I'll look up that case and see if I can find
>> the details, but really we need someone can that combat legal nonsense
>> with more legal nonsense - I can only illegal nonsense!
>
> I'm not sure I agree with the CC's decision, but it isn't a
> particularly quixotic one in the context of existing charity law, and
> I can see where it came from. Consider, for example, the notes at C4
> here: http://www.charity-commission.gov.uk/publicbenefit/pbeduc.asp#c
>
> "However, just giving people information is not necessarily educating
> them. The key is whether it is provided in such a way (however
> structured) that it is capable of educating them, rather than just
> adding to factual information."
>
> I think there are ways of interpreting this sort of thing so as to
> encompass what we do, but it's not unreasonable for them to interpret
> it differently. Note that there isn't really anything like us in any
> of the lists of examples!

But that isn't what they're interpreting. They quoted a specific case
which they are clearly misapplying. That there are other arguments
they could use that would be more justifiable isn't really the point.

> Approaching this from the position that the law is fundamentally being
> misapplied, and we need to tell them they're Doing It Wrong, is
> probably just going to set us up for some angry letters both ways, a
> quick fall, and being filed as "vexatious" - and the last thing we
> want is for us to blow the chance fully!

We need a lawyer to tell them they are doing it wrong so they can do
it in an appropriate way to avoid that happening.

> A more effective approach would, perhaps, be to closely compare our
> submission to the regulations, and see if the use of a different
> perspective on what we plan to do, or a broadening of our aims, would
> perhaps fit more comfortably with the (slightly odd) letter of the
> regulations. After all, we have to fit into charity law *as it exists*
> if we're going to be a charity at all!

Broadening our aims certainly wouldn't help. Our aims need to be
entirely charitable, extending them isn't going to remove any
uncharitable parts.

> (...and on which note, hrm. if we're not a charity, what are the
> practical implications of that? I assume with our small turnover it
> wouldn't make a *vast* difference, but...)

At the moment, it doesn't make a great deal of difference, you are
right. It may well make a difference in the not too distant future,
though. We need to work this all out ASAP.

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[James Farrar]

Well, this is certainly going to give us something to talk/vent/rant
about tomorrow!

2009/4/25 Michael Peel <email@...>:

> This is crazy. :-/ Where to start?
>
> First, fundamentally, the aim of pretty much everything is to
> increase knowledge. Teaching/education is merely a means to
> communicate that to people, which is something that an encyclopaedia
> natively does. To say that producing an encyclopaedia does not
> advance education - especially considering that this is Wikipedia,
> which has a huge impact - is simply wrong.
>
> Second, learning how to write an encyclopaedia - something that
> everyone who contributes to Wikipedia does - is inherently an
> educational experience. To support that naturally supports the
> advancement of education. To quote a law from 1957 - over 50 years
> ago - simply shows how out of date the law, and hence the goverment,
> is in this respect.
>
> Third, we're not all about Wikipedia. We're about the Wikimedia
> Movement, or even more generally, the free culture movement. That
> incorporates a much wider range of projects, including Wikiversity
> whose aim is explicitly to educate people, and a load of other
> projects that do this to a lesser extent.
>
> Fourth, stating that "the support the Wikipedia" is "the stated
> primary purpose of Wiki UK Ltd" is simply wrong; where does it even
> mention "Wikipedia" in our MoA/AoA?
>
> (There are more points, but I'm too tired right now to phrase them
> coherently...)
>
> We should definitely respond to HMRC about this; getting lawyers
> involved seems to be a very good idea. Is it worth contacting
> LawWorks regarding this?
>
> If we don't get anywhere with HMRC, then we should take this to the
> media - they'll have a field day with this.
>
> Mike
>
> On 24 Apr 2009, at 21:59, Andrew Turvey wrote:
>
>> Dear All,
>>
>> Yesterday we received a letter from the UK Tax Authorities
>> rejecting our application for recognition as a charity. Citing a
>> legal precedent, they stated that "the production of an
>> encyclopaedia is not the charitable advancement of education" and
>> therefore we were not established for exclusively charitable
>> purposes. The ruling they gave stated that "If the object be the
>> mere increase of knowledge it is not in itself a charitable object
>> unless it is combined with teaching or education".
>>
>> The full letter from the HMRC is copied below with some explanatory
>> notes added in { }
>>
>> Their objection goes to the heart of what we have been established
>> to do. On the surface, it does not appear that any different
>> wording in our constitution or correspondence would have given us a
>> different outcome. Nonetheless, the legal issues may be arguable -
>> our job is not just to produce content in isolation, but also to
>> spread that knowledge and make it accessible to all. I should
>> imagine this will come down to the finer points of law, and it is
>> probably best to engage a lawyer at this stage when we appeal.
>>
>> If we had applied to the Charity Commission before HMRC the
>> application would have been considered by different lawyers but the
>> same law would apply. Therefore, it is likely that we would have
>> come up against the same problem.
>>
>> I'm contacting the Foundation to ask them if they are aware of any
>> lawyers familiar with UK law who could help us pro-bono on this.
>>
>> I'm also sending a note to our MP to thank him for his help in
>> speeding this up: although it is disappointed to get this response,
>> it is better to get it now that in 3 or 6 months' time.
>>
>> In the meantime, we should probably stop referring to ourselves as
>> a "charity" or an "exempt charity". Before receiving this letter it
>> was reasonable for us to do this as that was our honest view. Now
>> we know there is some disagreement over this, I suggest we should
>> describe ourselves as a "not-for-profit" instead. Whilst we can
>> still get Gift Aid declarations (HMRC have previously confirmed
>> this was ok) we should probably add a caveat on the form explaining
>> that our charitable status is contested.
>>
>> Regards,
>>
>> Andrew Turvey
>> Secretary, Wikimedia UK
>>
>> =========================
>>
>> Company Secretary
>> Wikimedia UK
>> 23 Cartwright Way
>> Beeston
>> Nottingham NG9 1RL
>>
>> Date: 17 April 2009
>>
>> Dear Mr Turvey,
>>
>> Wiki UK Limited (operating name Wikimedia UK)
>>
>> Thank you for your letter of 4 March 2009 and enclosures. I am
>> sorry for the delay in replying.
>>
>> I am aware that you have written to Nick Palmer MP {regarding
>> delays in responding} - a reply to that letter will be sent
>> separately to Nick Palmer MP.
>>
>> The definition of a charitable company for tax purposes is
>> contained at Section 506(1) Income and Corporation Taxes Act 1988
>> which states " 'charitable company' means any body of persons
>> established for charitable purposes only". However, the
>> determination of charitable status is a matter of general law.
>>
>> To be a charity in law it is not sufficient that a company's
>> activities or intended activities are charitable. The memorandum
>> and articles of association of the company must declare objects
>> that are charitable in law and be otherwise in acceptable
>> charitable form so that the company could only carry out charitable
>> activities.
>>
>> The objects of Wiki UK Ltd are stated at clause 3 of its memorandum
>> of association:
>>
>> "The charity's Object is to aid and encourage people to collect,
>> develop and effectively disseminate knowledge and other
>> educational, cultural and historic content in the public domain or
>> under a license that allows everyone to freely use, distribute and
>> modify content, by means including (but not limited to):
>>
>> [9 ways are them listed - for example 'acting as a voice and
>> representative for the community of UK residents and citizens who
>> use and edit such repositories'] "
>>
>> In your letters of 23 November 2008 and 4 March 2009 you state that
>> the primary purpose of setting up the company is to support the
>> 'Wikipedia' website. {We actually said "support the “Wikipedia”
>> website and the other projects of the Wikimedia Foundation, in ways
>> that are compatible with UK charity law"}
>>
>> The stated objects are not charitable in law. The production of an
>> encyclopaedia is not the charitable advancement of of education and
>> has not been accepted as such in law. In Re Shaw [1957] 1 WLR 729
>> Mr Justice Harman said "If the object be the mere increase of
>> knowledge it is not in itself a charitable object unless it is
>> combined with teaching or education". Nor is the support the
>> Wikipedia, the stated primary purpose of Wiki UK Ltd, a charitable
>> purpose.
>>
>> Wiki UK Ltd is not established for charitable purposes only as
>> required by the legislation and so is not a charity for tax
>> purposes. The charity tax examptions and reliefs (including Gift
>> Aid tax relief) are not, therefore, available to Wiki UK Ltd.
>>
>> To help us improve customer service, please quote our reference
>> number and provide a daytime telephone number in any correspondence.
>>
>> Yours sincerely,
>>
>>
>> Higher Officer, Technical
>>
>>
>
>
> _______________________________________________
> Wikimedia UK mailing list
> wikimediauk-l@...
> http://mail.wikimedia.org/mailman/listinfo/wikimediauk-l
> WMUK: http://uk.wikimedia.org
>

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[Sean Whitton (Xyrael)]

On Sat, Apr 25, 2009 at 00:15, Michael Peel <email@...> wrote:
> Third, we're not all about Wikipedia. We're about the Wikimedia
> Movement, or even more generally, the free culture movement. That
> incorporates a much wider range of projects, including Wikiversity
> whose aim is explicitly to educate people, and a load of other
> projects that do this to a lesser extent.

IANAL, but this seems to be the key thing that we're stumbling on. If
we press this aspect of the chapter's purpose, that it supports
Wikimedia which is very obviously an educational charity, and that we
support all our projects esp. Wikiversity and Wikibooks, then maybe
their misapplication will dissapear. Focussing on Wikipedia whenever
Wikimedia comes up is something people tend to do.

S

--
Sean Whitton / <sean@...>
OpenPGP KeyID: 0x25F4EAB7

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[Tom Holden]

Initial advice from my barrister friend was that HMRC "don't have a leg to
stand on". I'm also getting a message sent round the Oxford law department
to see if we can get any additional help.

T

> -----Original Message-----
> From: wikimediauk-l-bounces@... [mailto:wikimediauk-l-
> bounces@...] On Behalf Of Sean Whitton
> Sent: 25 April 2009 11:36
> To: wikimediauk-l@...
> Subject: Re: [Wikimediauk-l] Charity application rejected
>
> On Sat, Apr 25, 2009 at 00:15, Michael Peel <email@...> wrote:
> > Third, we're not all about Wikipedia. We're about the Wikimedia
> > Movement, or even more generally, the free culture movement. That
> > incorporates a much wider range of projects, including Wikiversity
> > whose aim is explicitly to educate people, and a load of other
> > projects that do this to a lesser extent.
>
> IANAL, but this seems to be the key thing that we're stumbling on. If
> we press this aspect of the chapter's purpose, that it supports
> Wikimedia which is very obviously an educational charity, and that we
> support all our projects esp. Wikiversity and Wikibooks, then maybe
> their misapplication will dissapear. Focussing on Wikipedia whenever
> Wikimedia comes up is something people tend to do.
>
> S
>
> --
> Sean Whitton / <sean@...>
> OpenPGP KeyID: 0x25F4EAB7
>
> _______________________________________________
> Wikimedia UK mailing list
> wikimediauk-l@...
> http://mail.wikimedia.org/mailman/listinfo/wikimediauk-l
> WMUK: http://uk.wikimedia.org

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[Peter Cohen-2]

In-Reply-To: <84FD18C8-7BAE-4F64-A675-047B6A40019F@...>
Two bits one highlighted from what Andrew Turvey said:

> >  Whilst we can  still get Gift Aid declarations (HMRC
> > have previously confirmed  this was ok) we should probably add a
> > caveat on the form explaining  that our charitable status is
> > contested.

And one from the email from HMRC:
 
> > Wiki UK Ltd is not established for charitable purposes only as  
> > required by the legislation and so is not a charity for tax  
> > purposes. The charity tax examptions and reliefs (including Gift  
> > Aid tax relief) are not, therefore, available to Wiki UK Ltd.

I think you would be on dangerous ground using Gift Aid at all.


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[Andrew Turvey]

Some parts of this message have been removed. Learn more about Nabble's security policy.

Just to clarify what I meant about Gift Aid: At the moment our membership and donation forms include a Gift Aid declaration which we're encouraging people to fill in. This means that if/when we eventually do become recognised as a charity we will be able to claim all the back payments from HMRC without having to go back to people who donated in the past and ask them to make a retrospective declaration. Of course we don't actually get any money from HMRC until we are recognised but it makes the process simpler afterwards.

When we applied for recognition we specifically asked HMRC whether we could get declarations before we were registered and they said yes we were fine to do that. Given the developments we could either:

1) Continue with the forms as they are
2) Remove the declarations completely, or
3) Continue to ask people for declarations but add a caveat that HMRC are contesting our charitable status and Gift Aid will only be reclaimable if they agree

My suggestion is we do (3) so that it's easier to reclaim if/when we do get recognised.

Andrew

----- Original Message -----
From: "Peter Cohen" <peterc@...>
To: wikimediauk-l@...
Sent: Saturday, 25 April, 2009 12:29:00 GMT +00:00 GMT Britain, Ireland, Portugal
Subject: Re: [Wikimediauk-l] Charity application rejected

In-Reply-To: <84FD18C8-7BAE-4F64-A675-047B6A40019F@...>
Two bits one highlighted from what Andrew Turvey said:

> >  Whilst we can  still get Gift Aid declarations (HMRC
> > have previously confirmed  this was ok) we should probably add a
> > caveat on the form explaining  that our charitable status is
> > contested.

And one from the email from HMRC:
 
> > Wiki UK Ltd is not established for charitable purposes only as  
> > required by the legislation and so is not a charity for tax  
> > purposes. The charity tax examptions and reliefs (including Gift  
> > Aid tax relief) are not, therefore, available to Wiki UK Ltd.

I think you would be on dangerous ground using Gift Aid at all.


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[Andrew Turvey]

Some parts of this message have been removed. Learn more about Nabble's security policy.

Looks like my original email to the list bounced - hope this fills in some of the gaps.

Regards,

----- Forwarded Message -----
From: "Andrew Turvey" <raturvey@...>
To: "WMUK" <board@...>, wikimediauk-l@...
Sent: Friday, 24 April, 2009 21:59:07 GMT +00:00 GMT Britain, Ireland, Portugal
Subject: Charity application rejected

Dear All,

Yesterday we received a letter from the UK Tax Authorities rejecting our application for recognition as a charity. Citing a legal precedent, they stated that "the production of an encyclopaedia is not the charitable advancement of education" and therefore we were not established for exclusively charitable purposes. The ruling they gave stated that "If the object be the mere increase of knowledge it is not in itself a charitable object unless it is combined with teaching or education".

The full letter from the HMRC is copied below with some explanatory notes added in { }

Their objection goes to the heart of what we have been established to do. On the surface, it does not appear that any different wording in our constitution or correspondence would have given us a different outcome. Nonetheless, the legal issues may be arguable - our job is not just to produce content in isolation, but also to spread that knowledge and make it accessible to all. I should imagine this will come down to the finer points of law, and it is probably best to engage a lawyer at this stage when we appeal.

If we had applied to the Charity Commission before HMRC the application would have been considered by different lawyers but the same law would apply. Therefore, it is likely that we would have come up against the same problem.

I'm contacting the Foundation to ask them if they are aware of any lawyers familiar with UK law who could help us pro-bono on this.

I'm also sending a note to our MP to thank him for his help in speeding this up: although it is disappointed to get this response, it is better to get it now that in 3 or 6 months' time.

In the meantime, we should probably stop referring to ourselves as a "charity" or an "exempt charity". Before receiving this letter it was reasonable for us to do this as that was our honest view. Now we know there is some disagreement over this, I suggest we should describe ourselves as a "not-for-profit" instead. Whilst we can still get Gift Aid declarations (HMRC have previously confirmed this was ok) we should probably add a caveat on the form explaining that our charitable status is contested.

Regards,

Andrew Turvey
Secretary, Wikimedia UK

=========================

Company Secretary
Wikimedia UK
23 Cartwright Way
Beeston
Nottingham NG9 1RL

Date: 17 April 2009

Dear Mr Turvey,

Wiki UK Limited (operating name Wikimedia UK)

Thank you for your letter of 4 March 2009 and enclosures. I am sorry for the delay in replying.

I am aware that you have written to Nick Palmer MP {regarding delays in responding} - a reply to that letter will be sent separately to Nick Palmer MP.

The definition of a charitable company for tax purposes is contained at Section 506(1) Income and Corporation Taxes Act 1988 which states " 'charitable company' means any body of persons established for charitable purposes only". However, the determination of charitable status is a matter of general law.

To be a charity in law it is not sufficient that a company's activities or intended activities are charitable. The memorandum and articles of association of the company must declare objects that are charitable in law and be otherwise in acceptable charitable form so that the company could only carry out charitable activities.

The objects of Wiki UK Ltd are stated at clause 3 of its memorandum of association:

"The charity's Object is to aid and encourage people to collect, develop and effectively disseminate knowledge and other educational, cultural and historic content in the public domain or under a license that allows everyone to freely use, distribute and modify content, by means including (but not limited to):

[9 ways are them listed - for example 'acting as a voice and representative for the community of UK residents and citizens who use and edit such repositories'] "

In your letters of 23 November 2008 and 4 March 2009 you state that the primary purpose of setting up the company is to support the 'Wikipedia' website. {We actually said "support the “Wikipedia” website and the other projects of the Wikimedia Foundation, in ways that are compatible with UK charity law"}

The stated objects are not charitable in law. The production of an encyclopaedia is not the charitable advancement of of education and has not been accepted as such in law. In Re Shaw [1957] 1 WLR 729 Mr Justice Harman said "If the object be the mere increase of knowledge it is not in itself a charitable object unless it is combined with teaching or education". Nor is the support the Wikipedia, the stated primary purpose of Wiki UK Ltd, a charitable purpose.

Wiki UK Ltd is not established for charitable purposes only as required by the legislation and so is not a charity for tax purposes. The charity tax examptions and reliefs (including Gift Aid tax relief) are not, therefore, available to Wiki UK Ltd.

To help us improve customer service, please quote our reference number and provide a daytime telephone number in any correspondence.

Yours sincerely,


Higher Officer, Technical

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