Friday, September 28, 2012
Regent University Law Review is hosting a symposium on Emerging Issues in Social Enterprise on Saturday, October 6th, in Virginia Beach, Virginia. Panelists include Dana Brakman Reiser (Brooklyn), Cassady V. Brewer (Georgia State), Lyman P.Q. Johnson (Washington & Lee/University of St. Thomas), and Marcia Narine (Missouri-Kansas). Here is the full description of the event:
For private profit and for the public good. Social enterprise attempts to harness the power of the for-profit market to achieve social and environmental ends. In the wake of the recent financial crisis, interest in social enterprise has increased exponentially. Over the last four years, 18 states (including Maryland, North Carolina, and Virginia) have passed statutes allowing the formation of benefit corporations, benefit limited liability companies, low-profit limited liability companies (L3Cs), social purpose corporations, and flexible purpose corporations. While the population of these entities is growing, the mere existence of these business formations is hotly-debated within the corporate law community
Practitioners, professors, students, and business owners are encouraged to attend this exciting event that promises to be an informative and helpful exploration of the developing issues related to social enterprise entities.
Our Symposium will include two morning panels featuring four distinguished academics who will present papers on the benefits, disadvantages, and implications of social enterprise entities. After their presentations, these panelists will engage in a moderated discussion, followed by a question and answer time with the audience.
In the afternoon workshop, several legal practitioners and business owners will share their experience working in the field of social enterprise and will offer practical advice on working with these new corporate entities. Additionally, this workshop will provide an overview of the various forms of social enterprise entities, and will address the Virginia-specific start-up procedures and liability implications.
The Congressional Research Service recently issued a report on 501(c)(3) Organizations: What Qualifies as "Educational"? From the report's Summary section:
The question here is how far can the term “educational” be extended? Can a group espousing a viewpoint (i.e., only one side of an issue) be characterized as educational? If so, does the group have to provide factual information to support its statements? Is there some standard for truthfulness and accuracy?
The answers are rooted in a Treasury regulation, which provides that an organization that advocates a position or viewpoint can qualify as educational if it presents “a sufficiently full and fair exposition of the pertinent facts” so that people can form their own opinions or conclusions. To supplement the regulation’s “full and fair exposition” standard, the Internal Revenue Service (IRS) has developed the “methodology test.” Under it, a method is not “educational” if it fails to provide a “factual foundation” for the position or viewpoint or “a development from the relevant facts that would materially aid a listener or reader in a learning process.”
There are constitutional implications in how the term “educational” is defined. In particular, the denial of tax-exempt status on the basis of an organization’s speech could raise issues under the First Amendment. While there is no constitutional requirement that the term “educational” encompass every communication protected by the First Amendment, courts will examine the IRS’s denial of a tax exemption or other benefit when it is based on the content of the taxpayer’s speech in order to ensure the denial was not done for an impermissible reason. Groups that promote controversial positions may be particularly vulnerable to an interpretation of “educational” that permits a subjective determination by the IRS as to whether a group’s methods of presenting its views are educational.
Concern over these issues has led to questions about whether the “educational” standard is unconstitutionally vague. While the IRS’s methodology test was held to be unconstitutionally vague by a federal appellate court, subsequent court decisions have suggested that the test passes constitutional muster
Lilian V. Faulhaber (Boston University) has published The Hidden Limits of the Charitable Contribution: An Introduction to Hypersalience, 92 Boston University Law Review 1307. Here is the abstract:
Behavioral economics introduced the concept of salience to law and economics. In the area of tax policy, salience refers to the prominence of taxes in the minds of taxpayers. This article complicates the literature on salience and taxation by introducing the concept of “hypersalience,” which is in many ways the mirror image of hidden taxation. While a revenue-raising tax provision must be hidden for taxpayers to underestimate their tax bill, a revenue-reducing tax provision – such as a deduction, exclusion, or credit – must be more than fully salient for taxpayers to underestimate their tax bill. In other words, the provision itself must be salient, but the limits of that provision must be hidden, or low-salience.
This article uses the charitable deduction to illustrate the concept of hypersalience. While the charitable deduction is extremely salient to many taxpayers, not all taxpayers who believe that they will benefit from the deduction are correct. In fact, even though many Americans are aware that donations are tax-deductible, fewer than 50% of taxpayers can take advantage of the charitable deduction.
The concept of hypersalience is important for several reasons. First, it highlights the role of non-governmental actors in fostering taxpayer ignorance about the tax system. This article suggests that the hypersalience of the charitable deduction is at least partly due to marketing efforts by private third-party beneficiaries. Second, it complicates economic models, such as those of price elasticity of giving, and suggests that certain tax provisions may be more treasury efficient than previously thought. Third, it may lead to increased consumption of certain goods.
This article concludes that, although hypersalience may mean that the government is able to induce greater behavioral distortions without losing revenue, the costs of this phenomenon outweigh its benefits. Because hypersalience is due to taxpayer misunderstanding and the actions of third-party beneficiaries acting in their own interest, this article proposes several possible avenues for curtailing this phenomenon.
Dana Brakman Reiser (Brooklyn) has published Benefit Corporations - A Sustainable Form of Organization, 46 Wake Forest Law Review 591. Here is the introduction:
Founders of social enterprises believe profits and social good can be produced in tandem and wish to form organizations that will pursue these dual missions. They will, however, encounter obstacles to articulating and enforcing such dual missions if they adopt either a traditional nonprofit or for-profit form of organization. Nonprofit forms bar profit distribution and for-profit forms will create practical, if not legal, pressure to favor profit maximization over social good when the two come into conflict. And these two imperatives will certainly, at times, conflict. If more profit could always be obtained by pursuing social good, traditional for-profits would produce the optimal level of social goods, charities would be swimming in resources, or both. Social entrepreneurs believe social good can be produced along with profits and desire hybrid forms of organization to smooth a single enterprise’s path to realizing both goals.
A mounting number of jurisdictions have attempted to meet this demand by enabling new hybrid organizational forms. These include the low-profit limited liability company (“L3C”) available in nine U.S. states and the community interest company (“CIC”) available in the United Kingdom. In addition, “B Corp” is a private certification available to U.S. for-profits that demonstrate their commitment to a dual mission of making profits and promoting social good. Qualifying entities can license the B Corp mark to market themselves to consumers, investors, and others. This Article examines another recent entrant into the hybrid form category: the benefit corporation. A handful of states have enacted statutes enabling “benefit corporations” in the past two years, and several more are considering similar legislation. The benefit corporation form differs from the L3C, CIC, and B Corp in several respects, especially in its use of third-party standard-setting organizations to vet the social good bona fides of potential incorporators. This Article evaluates whether the innovations in the benefit corporation form can meet the goals social entrepreneurs have for hybrid organizational forms, ultimately concluding it will fall short.
This Article proceeds in two parts. The first Part explores the new benefit corporation form. After briefly summarizing the key elements of the L3C, CIC, and B Corp for purposes of comparison, it describes the major components of the benefit corporation form. The second Part then undertakes an admittedly preliminary assessment of the benefit corporation. This Part offers four reasons why social entrepreneurs view hybrid organizational forms attractive: articulating and enforcing a dual mission, expanding funding streams, branding their enterprises, and achieving sustainability. The new benefit corporation form offers potential gains in formally articulating a dual mission, an advantage as compared with traditional nonprofit and for-profit forms. However, like the other hybrid forms simultaneously under development, the benefit corporation lacks robust mechanisms to enforce dual mission, which will ultimately undermine its ability to expand funding streams and create a strong brand for social enterprise as sustainable organizations.
Sophie E. Smyth (Temple) has posted NGOs and the Legitimacy of International Development, 61 Kansas Law Review (forthcoming 2013) on SSRN. Here is the abstract:
The influence of NGOs in international development policy and practice has grown exponentially since the end of the Cold War. These NGOs’ agendas now compete with donor states’ in setting the priorities for international development assistance. Indeed, many NGOs now claim that the legitimacy of international development institutions depends on their inclusion in institutional governance. Several prominent policymakers have expressed a similar view. This article challenges that position.
I maintain that legitimacy is the wrong basis on which to stake out a claim for greater NGO involvement in international development institutions. I show that the legitimacy of an international development institution, like the legitimacy of a government bureaucracy, derives from the legitimacy of the states that created it and depends on its due and efficacious discharge of the mandate such states confer on it. Therefore, if the member states of a development institution mandate that NGOs be included in governance, NGO inclusion is critical to that institution’s legitimacy. Absent such a mandate, however, an international development institution’s legitimacy depends on its carrying out the pre-determined tasks and goals of the states that create it. As international bureaucracies, development institutions’ legitimacy equates with efficacy. NGO participation independent of, and unrelated to efficacy, has no bearing on an international development institution’s legitimacy.
Whether NGO participation in governances contributes to a development institution’s efficacy is a matter for empirical research. General principles suggest that NGO participation contributes to a development institution’s credibility both within developing and developed countries. Lessons gleaned from the recent experience of development institutions further support that view. If efficacy depends on credibility and credibility depends on NGO involvement, several conclusions follow; the design of new development institutions should include a space for NGOs, existing institutions that exclude NGOs should change. Paradoxically, NGO participation as a contributor to increased institutional credibility could also contribute to an institution’s legitimacy. How and why we get to that result, however, matters.
Thursday, September 27, 2012
We previously blogged about the New York Attorney General Eric T. Schneiderman's inquiry into politically active Internal Revenue Code section 501(c)(4) tax-exempt organizations. Last week U.S. Senator Orrin Hatch (R-Utah) and U.S. Representative Dave Camp (R-Mich.), the Ranking Member of the Senate Finance Committee and the Chairman of the House Ways and Means Committee, respectively, called on AG Schneiderman to halt his investigations. They focused in particular on the reported attempts by the AG to obtain IRS filings directly from the targeted organizations, including the non-public schedule of significant donors, rather than through the IRS-admnistered process for states to obtain tax return information, and stated that "We emphasize strongly that willful unauthorized disclosure of returns or return information is a federal crime subject to fines and/or imprisonment."
This week the Hill reports that AG Schneiderman fired back, defending his right as a state attorney general to directly request tax information from charitable and other nonprofit groups, including federal information returns such as the Form 990. And according to a report in Politico, the AG's response provided that "“Each state has a fundamental interest in ensuring compliance with its tax laws and in regulating certain activities of nonprofits. The recent activities of some tax-exempt organizations and businesses have been matters of great concern to New Yorkers. While my office respects applicable federal requirements and restrictions, I will continue to perform my duties and enforce the laws of the State of New York.”
The bottom line is that it appears that a previously obscure issue - whether charities and other nonprofits required to provide copies of their Forms 990 to state officials under state law could withhold or redact the schedule of donors for those returns (Schedule B) so as not to have that information publicly disclosed by the state - is now front-and-center in the ongoing dispute over politically active 501(c)(4) organizations.
The Seattle Times reports that Washington's Public Disclosure Commission has clarified that while churches may ask members to donate to Preserve Marriage Washington, a group opposing Washington's same-sex marriage law, churches may not themselves collect the contributions and turn them over to Preserve Marriage. Instead, either Preserve Marriage must collect such contributions or church members individually must send their contributions directly to the organization. According to an Associated Press report, the limitation is because of Washington state's "anti-bundling" laws that limit the role of intermediaries in raising and collecting funds for groups engaged in campaign spending. Preserve Marriage is supporting Referendum 74, which would ask voters this November to either approve or reject the state's same-sex marriage law.
Wednesday, September 26, 2012
Christianity Today reports that the U.S. District Court for the Western District of Wisconsin has concluded that the Freedom from Religion Foundation (FFRF) has standing to challenge the income tax exemption for parsonages and pastor housing allowances provided by Internal Revenue Code section 107 because FFRF has altered its salary structure to provide housing allowances, but those allowances do not qualify for exemption since the recipients are not ministers. According to a FFRF press release about the decision, its lawsuit seeks a declaration that section 107 violates the First Amendment's Establishment Clause. The case, which is only the latest attack by FFRF on section 107, raises the interesting question of whether the Supreme Court's recent narrowing of the Establishment Clause exception to the general rule that taxpayers lack standing to challenge tax provisions benefiting others can be avoided by creating a fact pattern that is identical to the one required under the challenged provision except for the lack of a religious element. For example, could a non-religious nonprofit that functions in a manner very similar to a church challenge the exemption for churches from having to file annual information returns (the Form 990)? The outcome of this lawsuit could therefore have even larger ramfications than the possible end of the pastor housing allowance exemption.
(Hat tip: ECFA)
Correction: The original version of this post gave the Washington Ethical Society as an example of a non-religious nonprofit that appears to function in a manner very similar to a church. An astute reader brought to my attention that the Washington Ethical Society is in fact actually classified as a church by the IRS, so I have corrected the post by removing that reference. My thanks for the fact checking.
Federal Court Denies 501(c)(3) Tax-Exempt Status for "Family Trust" Because of Inurement and Commerciality
Earlier this week the U.S. District Court for the District of Columbia denied exemption under section 501(c)(3) for an entity that serves as the trustee for a trust benefiting over 300 disabled and elderly individuals. The court's conclusion with respect to private inurement is not surprising given the apparent failure of the organization to provide comparability data to support the amount of compensation paid to its founder. What is, however, somewhat troubling is the relatively thin factual findings the court makes with respect to its conclusion that the organization had a substantial non-exempt purpose under the commerciality doctrine, in part because two of the three factors relied upon the court - a reliance solely on fees and significant profits - are not uncommon among groups that routinely qualify for section 501(c)(3) status.
In Family Trust of Massachusetts, Inc. v. United States, the plaintiff organization had sought a declaratory judgment that it qualified for tax-exempt status under section 501(c)(3) after the IRS had not ruled on its exemption application within 270 days. As detailed in the opinion, the trust overseen by the organization permits disabled recipients of Supplemental Security Income, Medicaid, and other government benefits to benefit from assets, held by the trust, that normally would be in excess of federally allowed limits. The court found two fatal flaws with the activities of the Family Trust.
First the individual who founded and controlled the organization had received escalating compensation (increasing to $70,000 annually in 2009) as the net revenue from the assets controlled by the trust grew (reaching $362,524 in 2009), and the Family Trust failed to provide evidence that the amount received was reasonable in light of the services provided. More specifically, while the Family Trust asserted it had gathered comparable compensation data through informal contacts with similar organizations, it failed to provide any specific comparability data to the IRS as part of the application process.
Second, the court concluded that the Family Trust ran afoul of the commerciality doctrine because (1) it had relied solely on the fees it imposed on its members for its revenues, as opposed to contributions or other sources of income, (2) it had a significant profit margin (that correlated with the founder's increasing salary), and (3) the founder's dual role with the Family Trust and his elder law legal practice suggested that the availability of the trust was effectively a commercial product that enhanced the attractiveness of his legal practice to potential clients (some of whom also took advantage of the trust).
Tuesday, September 25, 2012
Last week Senator Carl Levin (D-MI) released an exchange of correspondence with the IRS in which he called for the IRS to enforce the limitations on political activity by section 501(c)(4) social welfare organizations. In that exchange, the IRS revealed that it currently "has more than 70 ongoing examinations of section 501(c)(4) organizations," although not all of those exams necessarily relate to possible excessive political activity. It also stated that "[t]here are currently more than 1,600 organizations in the determination process seeking recognition as a section 501(c)(4) organization," including some for which their level of political activity is an issue. More Coverage: Bloomberg BNA ("IRS to Look at Political Activity of Section 501(c)(4) Organizations").
The Congressional Research Service has also been busy, releasing reports on "501(c)(4)s and the Gift Tax: Legal Analysis" (Hat tip: Election Law Blog) and "Political Ads: Issue Advocacy or Campaign Activity Under the Tax Code". In the first report CRS states that "it appears the stronger argument is that contributions to 501(c)(4) groups are statutorily subject to the gift tax" but then concludes that in light of a history of IRS non-enforcement and the 2011 IRS decision to close all examinations on this issue, "it appears that, for now at least, the gift tax will not be enforced on donations to 501(c)(4) groups." In the second report CRS reviews the existing guidance on political ads with respect to tax-exempt organizations, concluding (as those who have studied this area have long known) that "the line between issue advocacy and campaign activity can be difficult to discern."
Finally, the political spending by 501(c)(4)s, as well as by 501(c)(5) labor organizations and 501(c)(6) business organizations continues apace. According to the Center for Responsive Politics, based on only on express advocacy and electioneering communications such groups have already reported spending spent close to $100 million with six weeks still to go until the election. These figures do not include spending that does not fall within these election-law based categories but still could be viewed for federal tax purposes as political activity. While spending by candidates and superPACs dwarf this amount, it remains to be seen whether 501(c) political spending could be the difference in close races this fall.
Monday, September 24, 2012
The Treasury Department recently issued proposed regulations that expand who is able to make a determination that a foreign organization is the equivalent of a charitable organization (other than a private nonoperating foundation) under U.S. federal tax law. These "equivalency determinations" are important for private foundations seeking to make grants to such organizations because they permit foundations both to avoid the need to exercise expenditure responsibility over these grants (under Code section 4945) and to count such grants toward their minimum required distribution (under Code section 4942). Current regulations require that foundations rely on either an affidavit of the foreign organization or an opinion of counsel (for the foundation or for the grantee). The proposed regulations would expand who can provide such an opinion to any "qualified tax practitioner," which includes not only attorneys but also certified public accountants and enrolled agents, as defined in Treasury Department Circular No. 230. The expansion would not reach foreign counsel, however, unless they are otherwise a qualified tax practitioner. Treasury also stated it is considering whether to place a time limit on how long a foundation may rely on such an opinion, whether the ability to rely on affidavits should be modified, restricted, or eliminated, and whether any further modifications to Revenue Procedure 92-94 are need to take into account changes to the public support test (for avoiding private foundation classification). Until the final regulations are issued, they may be relied upon as of the scheduled date for publication in the Federal Register (today).
While private foundations likely will appreciate the expanded and likely usually lower-cost options for obtaining equivalency determinations, which is one of the reasons Treasury gave for the change, the proposed regulations do not address another frequently raised issue in this area. That issue is the creation of repositories for equivalency determinations so that all private foundations, and indeed all charities, could access and rely on them rather than each grantmaking organization having to obtain its own determination. Most prominently, the Advisory Committee on Tax Exempt and Government Entities ("ACT") recommended that the IRS facilitate the formation of such repositors in its 2009 report. The proposed regulations do not acknowledge this proposal, however, suggesting that at least for the time being it is not an option that Treasury and the IRS are interested in formally facilitating