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Voluntary transfer of incorporation

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Changes to the Associations Incorporation Act 1981 provide associations the opportunity to voluntarily transfer incorporation into a company limited by guarantee, or an Indigenous Corporation, in a cost effective manner. Under this process, transfer duty and capital gains tax are not payable because the assets of the association continue to be owned by the same body, despite the change of corporate status. Associations should consider obtaining legal advice before embarking on this process.

The reporting requirements under the Corporations Act 2001 (Cth) (Corporations Act) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act) may better suit larger associations given they are designed to regulate large-scale corporate entities, unlike the Associations Incorporation Act 1981.

The amendments provide the Chief Executive (or the Minister in the case of a corporation under the Religious Educational and Charitable Institutions Act 1861 (RECI Act) authority to approve the transfer. An application to transfer incorporation must be completed on either an Associations Incorporation Form 28-Application for authority to transfer an association´s incorporation (Associations Incorporation Act 1981) or an Associations Incorporation Form 29-Application for authority to transfer a corporation´s incorporation from RECI Act, whichever is relevant. These forms are available from www.fairtrading.qld.gov.au. Lodgement details are included on the form. No fee is payable on the forms.

Organisations seeking to transfer to the Corporations Act should first apply to Australian Securities and Investments Commission (ASIC) to reserve the name before lodging the Form 28 with the Office of Fair Trading. Once the forms are completed and approved, an application for actual transfer under the relevant Commonwealth corporations´
legislation must be made. Incorporated associations transferring to a company limited by guarantee must complete ASIC Form 202-Application for registration of a body corporate as an Australian company.

The next step is to ensure the company limited by guarantee or the Indigenous Corporation complies with the reporting and regulatory requirements of the Corporations Act or CATSI Act, whichever is relevant. ASIC can provide all necessary assistance and information in relation to the Corporations Act. In relation to requirements of the CATSI Act, the Office of the Registrar of Indigenous Corporations (ORAC) should be contacted. Detailed information on the reporting and regulatory requirements of setting up and running a company limited by guarantee or an Indigenous Corporation in Australia can be found on both www.asic.gov.au and www.orac.gov.au

Last reviewed 05/03/2012