Saturday, March 29, 2008
Here is the full text of Annoucement 2008-21, to appear in the March 31, 2008 Internal Revenue Bulletin. The announcement concerns the procedures by which to request a copy of an exempt organization's 990-T. Announcement 2008-21
Here is the full text of Annoucement 2008-21, to appear in the March 31, 2008 Internal Revenue Bulletin. The announcement concerns the procedures by which to request a copy of an exempt organization's 990-T.
This document explains the procedures the public may use to request the inspection and copying of a section 501(c)(3) organization’s annual return reporting section 511 unrelated business income (Form 990-T). The Tax Technical Corrections Act of 2007, Pub. L. 110-172, H.R. 4839, provides that the Internal Revenue Service is required to make Forms 990-T that are filed by a section 501(c)(3) organization publicly available for inspection and copying pursuant to section 6104(b). This provision is effective for returns filed after August 17, 2006, the date of enactment of the Pension Protection Act of 2006, Pub. L. 109-280 (PPA). Form 4506-A, Request for Public Inspection or Copy of Exempt or Political Organization IRS Form, is used to request from the Internal Revenue Service a copy of an exempt or political organization’s return, report, or notice pursuant to section 6104(b). The Form 4506-A does not currently contain a check box for a Form 990-T, although the Internal Revenue Service is in the process of revising the Form 4506-A to include this provision. If you want to inspect or copy a Form 990-T that was filed after August 17, 2006, please mail or fax a copy of the Form 4506-A to the Internal Revenue Service following the instructions for that form. In line 7 of the Form 4506-A, however, please write in “Form 990-T”. Please be advised that a CD-ROM will not be available for Form 990-T returns.
The charges listed on Form 4506-A for copies will apply. For further information, contact Melinda Williams at 202-283-9467 (not a toll-free number).
One more story about insider bad behavior and we might as well change the name of this blog to "Inside Edition" or simply, "The Insider." But then, those names seemed to be taken already. Today's news regarding a White House staffer's resignation involves, you guessed it, private inurement and excess benefit! According to the Washington Post, the staffer resigned because the nonprofit organization, Center for a Free Cuba, is suing the staffer for diverting its charitable largess to his "personal gain". As I mentioned earlier, embezzlement is probably not private inurement but may likely be excess benefit.
Felipe Sixto quit as special assistant to President Bush on March 20 after learning that the nonprofit Center for a Free Cuba planned to take legal action against him, said White House spokesman Scott Stanzel. Sixto was chief of staff at the Washington-based group for about three years before joining the White House's Office of Intergovernmental Affairs last July.
Like Woodward and Bernstein once whispered to Deep Throat, "this [private inurement/excess benefit thing] reaches all the way to the highest levels of the white house! Follow the money!" Ok, seriously, we should start following the money, as suggested in the study discussed in the immediately previous post. Maybe these stories come and go in waves, but they are becoming so regularly that they will eventually have a noticeable negative effect on the entire nonprofit sector. In the meantime, I am going to Miami to check out some bank accounts managed by "the Committee to Reelect." My pulitzer can't be far off!
Yesterday we reported about increasing occurences of private inurement and excess benefit transactions in nonprofit organizations. We have also previously opined that instances of private inurement and/or excess benefit transactions ought more often to be treated as criminal behavior subject to penal sanction. The harm is at least as great as that occuring from manager bad behavior in the for-profit sector. Today's New York Times picks up on a study we mentioned yesterday. The article states:
Nonprofit leaders tend to shrug off such cases as evidence of “just a few bad apples.” But a new report, trying to identify the scope of such thefts for the first time, suggests otherwise. The report, by four professors who specialize in nonprofit accounting, found that the typical theft from a charity was committed by a female employee with no criminal record who earned less than $50,000 a year and had worked for the nonprofit at least three years. The amount she stole was less than $40,000. The most costly cases, the study found, involved male executives earning $100,000 to $149,000 a year. The thieves in such cases had typically been with the organization the longest.
The final study, refered to in the article, is available by subscription to the Nonprofit and Voluntary Sector Quarterly Online but an earlier version (which appears to be nearly final except for data sets) is available for free online here. Here is an abstract of the study:
Losses due to fraudulent activities are particularly troublesome in the nonprofit sector because they directly reduce resources available to address tax-exempt purposes. The ensuing bad publicity also may reduce contributions and grants in subsequent periods. This article uses data provided by Certified Fraud Examiners to report on the types of fraud they identified in nonprofit organizations and the characteristics of both the victims and the perpetrators of the fraudulent activities. Based on the analysis of the data, the authors suggest ways that fraud losses can be prevented or mitigated. In particular, governing boards are urged to consider important controls in addition to the annual financial statement audit.
Friday, March 28, 2008
According to sensational reports in the New York Times and the Washington Post, Saddam Hussein used Life for Relief and Development, a Detroit Based 501(c)(3), to fund the travel of two prominent Congressmen to Iraq shortly before the fiasco that has become known as the Gulf War. Is my bias showing? Well, I served in the Army during the first gulf war, two of my brothers also served, one was recently resident in Baghdad and flew F-18 missions over Afghanistan, so I damn well have a right. My niece was sitting in a fuel truck in Iraq five months ago when a mortar landed close by. She said it was a frequent occurrence. She now suffers from PTSD. I can't stand the hawks and neocons who wave the flag and stomp their feet for war but never personally sacrifice (nor do their children, mothers, fathers, brothers or sisters). But I digress and should calm down. According to the New York Times article, the Justice Department has indicted one of the insiders of the charity for acting in violation of the Iraqi oil embargo. I suppose its best for the independent sector that the terrorists in charitable sheep's clothing be exposed and weeded out, lest the entire sector suffer. So I am not so much bothered by the authority granted in 501(p) allowing summary suspension of exempt status for groups posing as charities that actually support terrorism. But both articles indicate that the congressmen did nothing wrong even if the allegations that Saddam funded their travel through the nonprofit is true. If nothing was wrong with that, why mention it in the indictment. We ought to be careful, it seems to me, about charitable racial profiling via insinuations that charities supporting middle eastern people and causes (whether Arab or Jew, frankly) are invariably up to no good. For example, the articles say that Saddam used the charities to "secretly" fund travel, though everybody knows that Saddam was openly seeking to generate U.S. opposition to the invasion. Why use the word "secretly" except to insinuate that this islamic charity was up to no good. The problem with this sort of insinuation and broad brush painting is that it smacks of the sophisticated sort of repression less democratic countries engage in against NGO's and other civil society members who work to bring unbiased scrutiny of government policies around the world. We can't very well condemn Russia or China or African countries for their repression of nonprofits working to bring about civil society when we do so via more sophisticated means. IRC 501(p) and related efforts to prevent the misuse of charities are well-intentioned but then again the road to hell is paved . . .
According to the Houston Chronicle, Texas state court this week sentenced the former director of the Sickle Cell Association of the Texas Gulf Coast to six months in jail and 10 years probation for his theft of nearly $400,000 from the exempt organization:
Kenneth Garrett Beatty, 42, was placed on 10 years' probation and ordered to serve six months in the Harris County Jail. A jury in state District Judge Susan Brown's court convicted Beatty last week of a lesser offense of third-degree felony theft, rejecting the original charge — theft of more than $200,000 — which could have landed Beatty in prison for life. A second defendant, Willie Carlean Cruse, 49, of Crosby, who previously served as the agency's financial director, has already pleaded guilty to theft of more than $200,000 and will be sentenced by Brown next month.
We have previously blogged the recent rash of private inurement and excess benefit amongst nonprofits and whether those activities ought to more often be treated as crimes. Meanwhile, a study by the Ethics Resource Center indicates that ethical standards at nonprofit organizations are declining, according to a report in the Chronicle of Philanthropy.
Rates of observed misconduct at nonprofit organizations are at the highest level since the Ethics Resource Center began measuring in 2000. In 2007, more than half — 55 percent — of nonprofit employees observed one or more acts of misconduct in the previous year. Twenty-four percent of nonprofit employees observed their co-workers putting their own interests above those of the organization. Twenty-one percent observed managers or executives lying to employees. Nearly one in five employees — 19 percent — reported that they had seen abusive behavior or that they had seen co-workers misreporting the number of hours they had worked.
The full report, entitled the National Nonprofit Ethics Survey, is available online (after free registration). A third report described in separate Chronicle of Philanthropy report indicates that most cases of insider bad behavior could be prevented if nonprofits adopted better internal controls. "Most cases of employee fraud at charities stem from a lack of proper internal controls that deter theft, and those cases are further compounded by lax efforts to recover financial losses when the fraud is discovered, according to a new study."
Yesterday the Internal Revenue Service issued final regulations regarding excess benefit transactions. Here is the summary:
SUMMARY: This document contains final regulations that clarify the substantive requirements for tax exemption under section 501(c)(3) of the Internal Revenue Code (Code). This document also contains provisions that clarify the relationship between the substantive requirements for tax exemption under section 501(c)(3) and the imposition of section 4958 excise taxes on excess benefit transactions. These regulations affect organizations described in section 501(c)(3) of the Code and organizations applying for exemption as organizations described in section 501(c)(3) of the Code.
I haven't had time to read them thoroughly yet but my quick read indicates that the regulations do not yet address revenue sharing arrangements. Readers may recall that when Congress enacted IRC 4958, the Congress instructed Treasury to quickly issue regulations clarifying the circumstances under which revenue sharing arrangements constitute excess benefit transactions and, by implication, private inurement under 501(c)(3). Treas. Reg. 53.4958 is still "reserved," unfortunately. I also note that the regulations, at least as indicated by the title to yesterday's annoucement, continue the curious decision to conflate private inurement and private benefit. Recall, too, that Congress indicated in legislative history that the 4958 excise taxes should usually be imposed in lieu of revocation as allowed under 501(c)(3). The latest set of regulations describe the circumstances when the IRS will seek revocation in addition to excise taxes.
For an in-depth discussion of private inurement, excess benefit and revenue sharing see my article, The Scintilla of Individual Profit: In Search of Private Inurement and Excess Benefit. For an in-depth discussion of private benefit, see John Columbo, In Search of Private Benefit.
Wednesday, March 26, 2008
All Saints Church and the Argument for a Goal-Driven Application of Internal Revenue Service Rules for Tax-Exempt Organizations
Kara Backus has published "All Saints Church and the Argument for a Goal-Driven Application of Internal Revenue Service Rules for Tax-Exempt Organizations," 17 S. Cal. Interdis. L.J. 301 (2008). Here is an excerpt:
The conflict between All Saints and the IRS comes at a time of heightened public scrutiny of IRS enforcement of federal tax laws for tax-exempt organizations. The law limits all exempt organizations, not only churches, from venturing too far into the realm of politics. Three other highly publicized investigations are illustrative. In October 2004, in response to complaints from several Republican members of Congress, the IRS investigated whether statements made by National Association for the Advancement of Colored People ("NAACP") Chairman Julian Bond that were critical of the Bush administration violated the prohibition against campaign intervention. At the NAACP 2004 National Convention, Bond said, "The election this fall is a contest between two widely disparate views of who we are and what we believe. One view wants to march us backward ... ." The IRS concluded, nearly two years later, that the statement did not violate the conditions of the NAACP's exempt status. After the decision was announced, Bond expressed the opinion that the investigation was "initiated for partisan purposes to threaten our right to free speech."
The IRS does not, however, reserve its investigations for the political left. After an investigation into whether Focus on the Family Chairman James Dobson's endorsement of 2004 Republican candidates violated tax laws, the IRS concluded that the Colorado evangelist acted as an individual, rather than in his capacity as chairman, and therefore his organization was not implicated in political activity. In September 2006, the IRS revoked the tax-exempt status of Operation Rescue West, an anti-abortion group, after the group reportedly offered tax deductions in exchange for political contributions that would be used to defeat Senator John Kerry in the 2004 presidential election.
For the entire article, see "All saints Church and the Argument for a Goal-Driven Application of Internal Revenue Service Rules for Tax-Exempt Organizations," 17 S. Cal. Interdis. L.J. 301 (2008) or contact Southern California Interdisciplinary Law Journal.
On March 24, 2008, the Chronicle of Philanthropy reported on a new study that shows that wealthy people are more likely than not to use the Internet to make charitable donations. The article also explains that the study reveals how charities are turning off big donors by sending too many messages to donors who don't want them and not taking advantage of the interest of many donors in expanding the charity's on-line presence. Here are the key findings from the survey:
- Four out of five donors said they had made a charitable gift online, and a little more than half, 51 percent, said they prefer to use the Internet for their donations. Some 46 percent said that they expect to make a greater percentage of their charitable gifts online within the next five years.
- Fifty-six percent said that charities send too many e-mail messages, and 47 percent said they do not read as many messages from charities as they did in the past.
- Seventy-four percent said it’s inappropriate for a charity to obtain their e-mail address from a commercial database, while 82 percent said they don’t think it’s right for charities to send them messages about another organization.
- Ninety-two percent of donors like getting year-end tax receipts by e-mail, while 83 percent want to get electronic updates on a charity’s finances and spending. Seventy-four percent said e-mail messages are appropriate when notifying donors that it’s time to renew an annual gift or to explain how a donation has been spent.
- Eighty-one percent of donors dislike messages that take an urgent tone in seeking a repeat donation.
- Forty-six percent of donors said the charity’s messages do a good job of making them feel connected to the organization, whil 43 percent said the messages are well-written and inspiring.
For the entire article see "Wealthy People Increasingly Give Online, Study Finds" in the March 24, 2008, issue of the Chronicle of Philanthropy. To see the entire study, "The Wired Wealthy: Using the Internet to Connect with Your Middle and Major Donors," go to http://my.convio.com/?elqPURLPage=104.
In a previous blog post, we suggested that Obama likely did not make a legal mistake when he took a deduction for a $13,000 to "Congressional Black Caucus" because he must have meant to write "Congressional Black Caucus Foundation." Well, apparently, Obama may have made a legal mistake after all. According to Professor Sarah Lawsky (George Washington University), when she contacted the NYT reporter about this error, the NYT reporter informed her that the donation was indeed to "Congressional Black Caucus" and not to "Congressional Black Caucus Foundation." Stay tuned for more.....
On March 26, 2008, the New York Times published a story about Michelle and Barack Obama's charitable contributions for 2001 through 2006. Here is an excerpt from the article:
Senator Barack Obama and his wife, Michelle, sharply increased their charitable donations as Mr. Obama began to run for president and the family’s income increased from book sales, according to tax returns that the couple released on Tuesday.
Some of the largest donations went to the Trinity United Church of Christ, whose pastor, the Rev. Jeremiah A. Wright Jr., has been in the news for inflammatory messages in his sermons, causing Mr. Obama to distance himself from Mr. Wright, his former spiritual mentor
One interesting point in the article is the last paragraph that refers to a $13,000 donation to "Congressional Black Caucus" in 2006. This is clearly an error and the donation had to have gone to "Congressional Black Caucus Foundation," which is listed in the IRS publication 78 as a proper charitable donation recipient. Query why the article states that "The campaign said Mr. Obama had filed an amended return to eliminate that item as a deduction"?
Fellow Blogger and Tax Law Professor, Paul Caron, is quoted in the article as saying that: "Their charitable giving only went up when it looked like he was campaigning for the presidential office.”
For the entire story, see "Obamas’ Tax Returns Show Donation Spike" in the March 26, 2008, edition of the New York Times.
Tuesday, March 25, 2008
The March 21, 2008, issue of the Star Tribune has an interesting article about efficiency in nonprofit organizations. Here is an excerpt from the article:
After three years of planning, integration and execution, several Twin Cities human-service nonprofits have achieved higher levels of administrative competence, efficiency and cost savings through a shared-service approach to functions such as accounting, office technology and human resources.
"It means that our member agencies were able to serve more than 1,000 additional clients last year," said Stan Birnbaum, president of MACC Commonwealth, the hybrid operation supporting what is now seven of the 21-member nonprofits of the Metropolitan Alliance of Connected Communities (MACC). "This [approximately $200,000] is no one-time annual savings. Our model ensures that this level of efficiency will continue."
For the entire story, see "Nonprofits improving on how they do business" in the March 21, 2008, issue of the Star Tribune. For prior blog coverage about efficiency in nonprofits, see here and here. For my (David Brennen) own take on efficiency in nonprofits, see "The Charitable Tax Exemption is about Much More Than Efficiency," Nonprofit Quarterly Magazine (2007) (a draft is available here).
The Guardian (Education Section) has some interesting opinions about private schools in United Kingdom having charitable status. Here is an excerpt from one of the opinion letters:
I think it's absurd to give charitable status to something that's there to benefit the privileged few. I was in private school from nursery right through to A-levels. I had my first state education at university, and I've been left with a strong feeling that it's a very iniquitous system. I think private schools should be abolished. They lie at the root of the class system; there will always be a class system, but private schools are about buying your way in society.
For the entire story, see "Multiple choice: In the private interest - Should private schools have charitable status?" in the March 25, 2008, issue of The Guardian. For earlier blog coverage of this issue, see here and here.
On March 19, 2008, we blogged about the regional people of color legal scholarship conferences and encouraged those with working papers on nonprofit law and philanthropy and an interest in legal issues that affect minority populations to consider signing up to present work at one of the regional conferences. We mentioned four regional conferences in the prior blog - a joint conference by Western Law Teachers of Color (WLTC) and the Conference of Asian Pacific American Law Faculty (CAPALF); the Southeast/Southwest People of Color Legal Scholarship Conference 2008; and the Midwestern People of Color Legal Scholarship Conference. Well, there is a fourth conference; this is one is the Northeast People of Color Conference and it will be held on September 12 - 14, 2008, at Boston University School of Law. The theme is "Education and the Economy: The Real Lives of People of Color." The conference website is located at www.bu.edu/law/nepoc/. You may contact Professor Elaine Chiu at firstname.lastname@example.org for additional information.
Now more than three years after a judge in Pennsylvania ruled that the Barnes Foundation's $6 billion (with a "B") art collection could be moved from Lower Merion Township in Montgomery County Pennsylvania to Philadelphia, opponents of the relocation are back in court arguing that the collection should stay put and not move to Philly. Here is an excerpt from the article:
Speaking for the move's opponents, Carluccio and Eric Spade, attorney for the Montgomery County-based Friends of the Barnes Foundation, said the financial stakes have changed during the last three-plus years.
Lower Merion Township changed a zoning ordinance in July to allow 140,000 visitors annually to view the collection, twice as many as before. Montgomery County has offered to issue $50 million in bonds to buy the institution's Latchs Lane real estate and lease it back to the foundation. The Friends of the Barnes Foundation is trying to get the current site recognized as a national historic landmark, which would make it newly eligible for preservation grants.
For the entire article, see "Opponents of Barnes Foundation move urge judge to reopen case" in the March 25, 2008, issue of the Philadelphia Inquirer.