Thursday, March 4, 2010
Is there a private inurement, excess benefit or private benefit issue when a for-profit buys a non-profit college's assets, including its accreditation?
I ran across an interesting issue today when I learned that ITT Educational Services, Inc. recently purchased Daniel Webster College for 20.8 million. According to this report:
In return, the company obtained an academic credential [accredittion] that may generate a taxpayer-funded bonanza worth as much as $1 billion. ITT Educational, the third-biggest higher education company in the United States, with a market value of $3.8 billion, may increase it by 26 percent, or $1 billion, within five years because of the purchase of 1,200-student Daniel Webster in Nashua, N.H., according to Michael Clifford, an investor in Del Mar, Calif., who has participated in the acquisitions of four nonprofit colleges.
If the investor is correct -- that the corporation paid $20.8 million for an asset worth $1 billion -- what then should be said about the charity's obligation to get fair market value for its assets? Probably not private inurement or excess benefit because of the "first bite" rule. Is this an actionable case of private benefit?