If you wind up your charity, it no longer exists and must stop all operations.
Winding up is one thing you can do if you no longer want your charity to keep operating the way it is. It is important to know, however, that it is permanent.
If your charity decides to wind up, you must make sure that you follow your charity’s rules and all legal requirements during the process.
You may need to get professional advice when deciding whether to wind up your charity or to help you wind up, especially if you have employees, valuable property or contracts. This can also help you consider other options, such as merging.
Why a charity may choose to wind up
A charity that is solvent (able to pay all of its debts when they are due) may voluntarily wind up because, for example, it:
- has achieved its purpose
- is unable to get funding, or
- is unable to find people to govern the charity or to volunteer.
You must follow your charity’s governing documents (such as your constitution, rules or trust deed) and any legal requirements.
When a charity must wind up
You will need professional advice if you think your charity needs to wind up because it does not have enough money to pay its debts.
Generally, a charity that is insolvent (unable to pay all its debts) must appoint an administrator or liquidator (external, specialist person) to manage the charity. In some cases, if a charity is insolvent it must be wound up. If a charity is insolvent, and has not acted to appoint an administrator or liquidator, a court may order that the charity be wound up.
A charity may be insolvent if it:
- has overdue taxes
- is behind on loan repayments
- is operating at a loss, or
- is unable to pay for goods it has received.
Some charities may also be compulsorily wound up by a court for other reasons, for example, because the charity has no members, or because the charity has not operated for a year. A state incorporating regulator may also be able to wind up a charity, for example, if the charity does not comply with certain legal requirements (such as having a certain minimum number of members).
How to wind up a charity
Winding up may involve many activities, such as:
- agreeing to wind up
- appointing an independent administrator or liquidator
- ending contracts
- paying debts
- distributing surplus assets (leftover money and property)
- closing bank accounts
- disbanding the governing body (such as the board or committee of management)
- cancelling registration as a legal structure
- cancelling registration as a charity with the ACNC, and
- cancelling your ABN.
Follow the rules for your incorporating regulator and other regulators
If your charity is incorporated, the process for winding up depends on your charity’s incorporating regulator. For example, your charity may be an incorporated association registered with your state or territory incorporating regulator, or a company limited by guarantee registered with ASIC. It may also depend on, for example, the value of your charity’s assets and whether your charity has any outstanding debts.
Each incorporating regulator has different processes, forms and other legal requirements. For example, your incorporating regulator may require you to appoint a liquidator if your assets are worth more than a certain amount.
When you decide to wind up, you need to visit your incorporating regulator’s website or contact them. Generally, incorporating regulators have step-by-step guides and detailed information on winding up on their websites.
To find your incorporating regulator, see our list of regulators that may affect charities.
You may also need to formally notify other regulators that your charity is winding up, for example, the Australian Taxation Office.
After you have cancelled registration with your charity’s incorporating regulator, you no longer need to meet the regulator’s legal requirements, such as annual reporting.
Follow your charity’s governing documents
When you are winding up, you must follow your governing documents (such as your constitution, rules or trust deed).
Many registered charities’ governing documents have a ‘winding up clause’ (also called a ‘dissolution clause’) that says that you must give any ‘surplus assets’ to another charity with similar purposes. The governing documents may set out a procedure for choosing this charity.
Distribute surplus assets
Generally, your members need to agree on how your charity’s surplus assets will be distributed after it winds up. You may need to resolve which charity to give your surplus assets at the same time that you resolve to wind up.
As noted above, many registered charities must have a ‘winding up’ or ‘dissolution’ clause in their governing documents, which they must follow when they distribute surplus assets.
Follow other legal requirements
Apart from the requirements of your incorporating regulator and governing document, there may be other legal requirements you need to meet before, during and after you wind up. For example, if your charity has paid employees, you must comply with all legal requirements towards employees when you wind up.
You need to make sure that you know the requirements of the relevant awards, enterprise agreements and workplace laws in relation to winding up.
Tell people your charity is winding up
Make sure you tell your landlord, electricity supplier and anyone else that you have contracts or arrangements with that your charity is winding up. You may need to take certain steps to ensure that you meet any obligations under these contracts or arrangements.
You also need to tell members, volunteers, employees, clients, donors and maybe the local community and the public.
Revoke (cancel) registration with the ACNC
To cancel your registration as a charity with the ACNC, you need to fill in and submit Form 5A: Application to revoke charity registration. Before applying to cancel your charity’s registration, you must submit your most recent Annual Information Statement. If you don’t do this, you must explain why it is not necessary when you apply to cancel your registration.
The ACNC will decide whether to approve your charity’s application to cancel its registration according to the ACNC Commissioner’s Policy Statement: Choosing to revoke.
In some cases, the ACNC has the power to revoke your charity’s registration without you applying (for example, if your charity has a trustee in bankruptcy, a liquidator, or a person appointed or authorised under an Australian law to manage the charity because it is insolvent).
Effect of winding up your charity
When you finish winding up your charity, it no longer exists and must stop all operations. This means that your charity:
- cannot conduct any activities
- cannot fundraise or accept donations
- is not eligible for charity tax concessions
- does not have to report to the ACNC or other regulators, and
- remains on the ACNC Register but will be identified as no longer registered with the ACNC.