The Charities Directorate was encountering situations where a registered charity that is a private foundation makes a loan at the prescribed rate of interest where the loan recipient receives the loan because of that debtor’s relationship with the private foundation or the foundation’s board of directors. Can that foundation be subject to a penalty for undue benefits under s. 188.1(4) in respect of the loan where the non-qualifying interest (NQI) rules in s. 189(1) do not apply to it? Headquarters responded:
[G]iven that subsection 189(1) of the Act and subsection 188.1(4) of the Act apply to different parties, each of these provisions must be considered independently of each other. The fact that a particular taxpayer may not be subject to a tax under subsection 189(1) of the Act in respect of a loan received from a registered charity does not, in and of itself, preclude the charity from being assessed a penalty under subsection 188.1(4) of the Act where the facts and circumstances establish that the loan is an undue benefit conferred on the particular taxpayer.