Section 40 Becoming a community interest company: Scottish charitiesF11 I1

England, Wales and Scotland

(1)

~~F1A~~ ~~F2company that is a Scottish charity~~ ~~may not become a community interest company.~~

(2)

~~If a~~ ~~company that is a Scottish charity~~ purports by special resolution to change its name to comply with section 33, the Commissioners of Inland Revenue may apply to the Court of Session for an order quashing any altered certificate of incorporation issued under section 28(6) of ~~F3the~~ ~~1985 Act~~.

(3)

Regulations may repeal subsections (1) and (2); and subsections (4) to (7) have effect on and after the day on which regulations under this subsection come into force.

(4)

A Scottish charitable company may not F4become a community interest company without the prior written consent—

(a)

if the company’s registered office is situated in Scotland, of the Scottish Charity Regulator, or

(b)

if the company’s registered office is situated in England and Wales (or Wales), of both the Scottish Charity Regulator and the F5Charity Commission.

(5)

If a company that is a Scottish charity contravenes subsection (4)(a), the Scottish Charity Regulator may apply to the Court of Session for an order quashing any altered certificate of incorporation issued under F6section 38A.

(6)

If a company that is a Scottish charity contravenes subsection (4)(b), the Scottish Charity Regulator or the F7Charity Commission may apply to the High Court for such an order.

(7)

If a company that is a Scottish charity becomes a community interest company, F8it shall continue to be under a duty to apply–

(a)

any property previously acquired, or any property representing property previously acquired,

(b)

any property representing income which has previously accrued, or

(c)

the income from any such property.

in accordance with its purposes as set out in its entry in the Scottish Charity Register immediately before it became a community interest company.

F9(8)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F10(9)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations

Textual amendments

F1: S. 40(1)(2) repealed (E.W.S.) (1.10.2009) by The Community Interest Company (Amendment) Regulations 2009 (S.I. 2009/1942), regs. 1(1), 2
F2: Words in s. 40 substituted (6.4.2007) by The Companies Act 2006 (Commencement No. 2, Consequential Amendments, Transitional Provisions and Savings) Order 2007 (S.I. 2007/1093), art. 1(3), Sch. 4 para. 10(a) (with art. 11(1))
F3: Words in s. 40(2) substituted (6.4.2007) by The Companies Act 2006 (Commencement No. 2, Consequential Amendments, Transitional Provisions and Savings) Order 2007 (S.I. 2007/1093), art. 1(3), Sch. 4 para. 10(b) (with art. 11(1))
F4: Words in s. 40(4) substituted (1.10.2009) by The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 1(2), Sch. 1 para. 229(3) (with art. 10)
F5: Words in s. 40(4)(b) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 202; S.I. 2007/309, art. 2, Sch.
F6: Words in s. 40(5) substituted (1.10.2009) by virtue of The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 1(2), Sch. 1 para. 229(4) (with art. 10)
F7: Words in s. 40(6) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 202; S.I. 2007/309, art. 2, Sch.
F8: Words in s. 40(7) substituted (1.4.2006) by Charities and Trustee Investment (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2006 (S.I. 2006/242), art. 1(3), Sch. para. 8(3)(a)
F9: S. 40(8) omitted (6.4.2007) by virtue of The Companies Act 2006 (Commencement No. 2, Consequential Amendments, Transitional Provisions and Savings) Order 2007 (S.I. 2007/1093), art. 1(3), Sch. 4 para. 10(c) (with art. 11(1))
F10: S. 40(9) repealed (1.4.2006) by Charities and Trustee Investment (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2006 (S.I. 2006/242), art. 1(3), Sch. para. 8(3)(c)
F11: S. 40 heading substituted (1.10.2009) by The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 1(2), Sch. 1 para. 229(2) (with art. 10)

Commencement

I1: S. 40 in force at 1.7.2005 by S.I. 2004/3322, art. 2(3), Sch. 3

Notes on Part 2

Modifications

C1: Pt. 2 modified (1.1.2007 for specified purposes, 20.1.2007 for specified purposes, 6.4.2007 for specified purposes, 1.10.2007 for specified purposes, 1.11.2007 for specified purposes, 15.12.2007 for specified purposes, 6.4.2008 for specified purposes, 1.10.2008 for specified purposes, 1.10.2009 in so far as not already in force) by Companies Act 2006 (c. 46), ss. 1161-1171, 1173, 1174, 1300(2), Sch. 7, Sch. 8; S.I. 2006/3428, art. 2(2)(f)(g), 3(2)(c)(d)(3) (with arts. 6 8(2)); S.I. 2007/1093, art. 2(1)(d)(2)(h) (with art. 6 art. 8(2) art. 4 11(1)); S.I. 2007/2194, arts. 2(3)(k), 3(2)(c), 4(2)(a) (with arts. 4, 6, 7, 8(2), 11(1), 12, Sch. 1 para. 21); S.I. 2007/3495, art. 3(1)(o)-(r), (t)(3)(i)(j), 5(3)(b)(c) (with arts. 7, 12); S.I. 2008/2860, art. 3(u) (with arts. 7, 8, Sch. 2 para. 1)
C2: Pt. 2 extended (Northern Ireland) (1.1.2007 for specified purposes, 20.1.2007 for specified purposes, 6.4.2007 in so far as not already in force) by Companies Act 2006 (c. 46), ss. 1284(1), 1300(2); S.I. 2006/3428, arts. 2(2)(h), 3(2)(e), 4(3)(c) (with arts. 6, 8(2), Sch. 1 para. 15) (which transitional provisions in Sch. 1 are revoked (1.10.2009) by S.I. 2008/2860, arts. 1(2), 6(1)(a) (with arts. 5, 8, Sch. 2)); S.I. 2007/1093, art. 2(1)(e) (with arts. 3, 4, 7, 11(1), 12); S.I. 2006/3428, arts. 2(2)(h), 3(2)(e), 4(3)(c) (with arts. 6, 8(2), Sch. 1 para. 15) (which transitional provisions in Sch. 1 are revoked (1.10.2009) by S.I. 2008/2860, arts. 1(2), 6(1)(a) (with arts. 5, 8, Sch. 2)); S.I. 2007/1093, art. 2(1)(e) (with arts. 3, 4, 7 11(1), 12)
C3: Pt. 2 excluded (20.1.2007 for specified purposes, 6.4.2007 for specified purposes, 1.10.2007 for specified purposes, 6.4.2008 for specified purposes, 1.10.2008 for specified purposes, 1.10.2009 in so far as not already in force) by Companies Act 2006 (c. 46), ss. 1129, 1300(2) (with s. 1133); S.I. 2006/3428, art. 3(2)(b) (with arts. 6, 8(2)); S.I. 2007/1093, art. 2(2)(c) (with arts. 4, 11(1)); S.I. 2007/2194, art. 2(1)(l)(3)(h) (with arts. 7, 12); S.I. 2007/3495, arts. 3(3)(g), 5(3)(a) (with arts. 7, 12); S.I. 2008/2860, art. 3(s) (with arts. 7, 8, Sch. 2 para. 1)
C4: Pt. 2 modified (20.1.2007 for specified purposes, 1.10.2009 in so far as not already in force) by Companies Act 2006 (c. 46), ss. 583, 1300(2); S.I. 2006/3428, art. 3(3) (with arts. 6, 8(2)); S.I. 2008/2860, art. 3(k) (with arts. 7, 8, Sch. 2 paras. 1, 57)
C5: Pt. 2 restricted (20.1.2007 for specified purposes, 1.10.2009 in so far as not already in force) by Companies Act 2006 (c. 46), ss. 1156(2), 1300(2); S.I. 2006/3428, art. 3(3) (with arts. 6, 8(2)); S.I. 2008/2860, art. 3(t) (with arts. 7, 8, Sch. 2 para. 1)
C6: Pt. 2 power to apply (with modifications) conferred (20.1.2007) by Companies Act 2006 (c. 46), ss. 1043(2), 1300(2); S.I. 2006/3428, art. 3(3) (with arts. 6, 8(2))
C7: Pt. 2 modified (20.1.2007 for specified purposes, 1.10.2009 in so far as not already in force) by Companies Act 2006 (c. 46), ss. 1081(6), 1300(2); S.I. 2006/3428, art. 3(3) (with arts. 6, 8(2)); S.I. 2008/2860, art. 3(r) (with arts. 7, 8, Sch. 2 para. 1 105) (which transitional provisions in Sch. 2 are substituted (1.10.2009) by S.I. 2009/1802, arts. 1, 18, Sch.)
C8: Pt. 2 power to apply conferred (20.1.2007) by Companies Act 2006 (c. 46), ss. 1042(1), 1300(2); S.I. 2006/3428, art. 3(3) (with arts. 6, 8(2))
C9: Pt. 2 modified (20.1.2007 for specified purposes, 6.4.2007 for specified purposes, 1.10.2007 for specified purposes, 6.4.2008 for specified purposes, 1.10.2008 for specified purposes, 1.10.2009 in so far as not already in force) by Companies Act 2006 (c. 46), ss. 1125(1), 1300(2) (with s. 1133); S.I. 2006/3428, art. 3(2)(b) (with arts. 6, 8(2)); S.I. 2007/1093, art. 2(2)(c) (with arts. 4 11(1)); S.I. 2007/2194, art. 2(1)(l)(3)(h) (with arts. 7 12); S.I. 2007/3495, arts. 3(3)(g), 5(3)(a) (with arts. 7, 12); S.I. 2008/2860, art. 3(s) (with arts. 7, 8, Sch. 2 para. 1)
C10: Pt. 2 modified (20.1.2007 for specified purposes, 6.4.2007 for specified purposes, 1.10.2007 for specified purposes, 6.4.2008 for specified purposes, 1.10.2008 for specified purposes, 1.10.2009 in so far as not already in force) by Companies Act 2006 (c. 46), ss. 1131, 1300(2) (with s. 1133); S.I. 2006/3428, art. 3(2)(b) (with arts. 6, 8(2)); S.I. 2007/1093, art. 2(2)(c) (with arts. 4 11(1)); S.I. 2007/2194, art. 2(1)(l)(3)(h) (with arts. 7, 12); S.I. 2007/3495, arts. 3(3)(g), 5(3)(a) (with arts. 7, 12); S.I. 2008/2860, art. 3(s) (with arts. 7, 8, Sch. 2 para. 1)
C11: Pt. 2 modified (6.4.2007 for specified purposes, 1.10.2007 for specified purposes, 1.11.2007 for specified purposes, 6.4.2008 for specified purposes, 1.10.2009 in so far as not already in force) by Companies Act 2006 (c. 46), ss. 546, 1300(2); S.I. 2007/1093, art. 2(2)(a) (with arts. 4 11(1)); S.I. 2007/2194, arts. 2(3)(e), 3(2)(a) (with arts. 7 12); S.I. 2007/3495, art. 3(3)(d) (with arts. 7, 12); S.I. 2008/2860, art. 3(k) (with arts. 7, 8, Sch. 2 para. 1)
C12: Pt. 2 modified (6.4.2007 for specified purposes, 1.10.2009 in so far as not already in force) by Companies Act 2006 (c. 46), ss. 558, 1300(2) (with s. 559); S.I. 2007/1093, art. 2(2)(b) (with arts. 4, 11(1)); S.I. 2008/2860, art. 3(k) (with arts. 7, 8, Sch. 2 para. 1)
C13: Pt. 2 modified (6.4.2007 for specified purposes, 1.10.2009 in so far as not already in force) by Companies Act 2006 (c. 46), s. 1060(3)(4), 1300(2); S.I. 2006/3428, art. 4(3)(a) (with arts. 6 8(2)); S.I. 2008/2860, art. 3(r) (with arts. 7, 8, Sch. 2 para. 1)
C14: Pt. 2 modified (6.4.2007) by The Companies Acts (Unregistered Companies) Regulations 2007 (S.I. 2007/318), regs. 1(2), 4, 5 (with reg. 6)
C15: Pt. 2 modified (1.10.2007 for specified purposes, 6.4.2008 for specified purposes, 1.10.2009 in so far as not already in force) by Companies Act 2006 (c. 46), s. 540(1)(4), 1300(2); S.I. 2007/2194, art. 2(3)(c) (with arts. 7, 12); S.I. 2007/3495, art. 3(3)(b) (with arts. 7, 12); S.I. 2008/2860, art. 3(k) (with arts. 7, 8, Sch. 2 para. 1)
C16: Pt. 2 modified (1.10.2007) by Companies Act 2006 (c. 46), ss. 288(1), 1300(2) (with s. 281(4)); S.I. 2007/2194, art. 2(1)(f) (with arts. 7, 12, Sch. 1 para. 13, Sch. 3 para. 24) (which transitional provisions in Sch. 1 are amended (6.4.2008) by S.I. 2007/3495, art. 10(1)(b) (with S.I. 2008/674, arts. 2(3), 5, Sch. 3 para. 4) and revoked (1.10.2009) by S.I. 2008/2860, art. 6(1)(c)(2) (with art. 8, Sch. 2))
C17: Pt. 2 modified (1.10.2007 for specified purposes, 1.11.2007 for specified purposes, 1.10.2009 in so far as not already in force) by Companies Act 2006 (c. 46), ss. 1158, 1300(2); S.I. 2007/2194, arts. 2(3)(i), 3(2)(b) (with arts. 7 12 Sch. 1 para. 21) (which transitional provisions in Sch. 1 are revoked (1.10.2009) by S.I. 2008/2860, art. 6(1)(c)(2) (with art. 8, Sch. 2)); S.I. 2008/2860, art. 3(u) (with arts. 7, 8, Sch. 2 para. 1)
C18: Pt. 2 modified (1.10.2007 for specified purposes, 6.4.2008 for specified purposes, 1.10.2009 in so far as not already in force) by Companies Act 2006 (c. 46), ss. 545, 1300(2); S.I. 2007/2194, art. 2(3)(d) (with arts. 7, 12); S.I. 2007/3495, art. 3(3)(c) (with arts. 7, 12); S.I. 2008/2860, art. 3(k) (with arts. 7, 8, Sch. 2 para. 1)
C19: Pt. 2 modified (1.10.2007 for specified purposes, 6.4.2008 for specified purposes, 1.10.2009 in so far as not already in force) by Companies Act 2006 (c. 46), ss. 629, 1300(2); S.I. 2007/2194, art. 2(3)(g) (with arts. 7, 12); S.I. 2007/3495, art. 3(3)(f) (with arts. 7, 12); S.I. 2008/2860, art. 3(k) (with arts. 7, 8, Sch. 2 para. 1)
C20: Pt. 2 modified (1.10.2007 for specified purposes, 6.4.2008 for specified purposes, 1.10.2009 in so far as not already in force) by Companies Act 2006 (c. 46), ss. 548, 1300(2); S.I. 2007/2194, art. 2(3)(f) (with arts. 7, 12); S.I. 2007/3495, art. 3(3)(e) (with arts. 7, 12); S.I. 2008/2860, art. 3(k) (with arts. 7, 8, Sch. 2 para. 1)
C21: Pt. 2 modified (6.4.2008) by Companies Act 2006 (c. 46), ss. 437(3), 1300(2); S.I. 2007/3495, art. 3(1)(d) (with arts. 7 9 12 Sch. 4 para. 6)
C22: Pt. 2 modified (6.4.2008) by Companies Act 2006 (c. 46), ss. 738, 1300(2); S.I. 2007/3495, art. 3(1)(g) (with arts. 7 12)
C23: Pt. 2 modified (1.10.2009) by Companies Act 2006 (c. 46), ss. 1(1), 547, 724(5), 1044, 1300(2); S.I. 2008/2860, art. 3(a) (with arts. 7, 8, Sch. 2 para. 1)
C24: Pt. 2 modified by Companies Act 2006 (c. 46), ss. 1170A, 1170B (as inserted (1.10.2009) by The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 1(2), Sch. 1 para. 260(8) (with art. 10))
C25: Pt. 2 extended (1.10.2009) by The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 1(2), Sch. 3 para. 2 (with art. 10)
C26: Pt. 2 restricted (1.10.2009) by Companies Act 2006 (c. 46), ss. 1118, 1300(2); S.I. 2008/2860, art. 3(r) (with arts. 7, 8, Sch. 2 para. 1)
C27: Pt. 2 applied (with modifications) (1.10.2009) by The Unregistered Companies Regulations 2009 (S.I. 2009/2436), regs. 1(2), 3-5, Sch. 1 para. 21 (with regs. 7, 9, Sch. 2)
C28: Pt. 2 extended (12.5.2011) by The Companies Act 2006 (Consequential Amendments and Transitional Provisions) Order 2011 (S.I. 2011/1265), art. 1(2), Sch. 1 para. 2
C29: Pt. 2 modified (31.12.2020) by Regulation (EC) No. 2157/2001, Art. AAA1(3) (as inserted by The European Public Limited-Liability Company (Amendment etc.) (EU Exit) Regulations 2018 (S.I. 2018/1298), regs. 1, 97 (with regs. 140-145) (as amended by S.I. 2020/523, regs. 1(2), 5(a)-(f)); 2020 c. 1, Sch. 5 para. 1(1))

Section 40 Becoming a community interest company: Scottish charitiesF11I1