Friday, November 22, 2013
At the upcoming meeting of the Association of American Law Schools, the Section on Nonprofit and Philanthropy Law and the Section on Law, Medicine and Health Care are co-sponsoring a program, The Role of Nonprofits Under the Affordable Care Act. Here are the most recent details that I have received:
Date and Time: Friday, January 3rd, 10:30 a.m. – 12:15 p.m.
Moderator and Commentator: Catherine E. Livingston, Partner, Jones Day, Washington, DC
Kathleen M. Boozang, Seton Hall University School of Law
Mary A. Crossley, University of Pittsburgh School of Law, Speaker from Call for Papers
Erin C. Fuse Brown, Georgie State University College of Law, Speaker from Call for Papers
Thomas L. Greaney, Saint Louis University School of Law
Robert A. Katz, Indiana University Robert H. McKinney School of Law
Mark A. Hall, Wake Forest University School of Law
Jean Wright Veilleux, Charlotte School of Law, Speaker from Call for Papers
Program Description: The program will examine the role of nonprofit and other tax-exempt organizations under the Affordable Care Act of 2010. Topics include the Act’s impact on nonprofits, including the ACA’s new requirements for 501(c)(3) tax-exempt hospitals, the participation of nonprofit hospitals in Accountable Care Organizations (ACOs), and the creation of nonprofit Consumer Operated and Oriented Plans (CO-OPs).
Business Meeting: At Program Conclusion
Saturday, September 28, 2013
The Ninth Clinton Global Initiative Annual Meeting ended in New York City on Thursday with an emphasis on optimism and mobilizing for action to address the most pressing global challenges. Over the three days of the meeting, Clinton Global Initiative (CGI) members made over 160 new Commitments to Action, expected to impact nearly 22.2 million lives and valued at more than $10.8 billion when fully funded and implemented.
According to a press release issued shortly after the meeting ended,
Through the CGI commitments announced this year, nearly 27 million metric tons of CO2 will not be released into the atmosphere, more than 2 million girls will be reached by efforts specifically targeting female enrollment in schools, more than 11.6 million children will have a better education, nearly 4 million people will have increased access to health services, and more than $7 billion will be invested in or loaned to small- and medium-sized enterprises.
Former President Clinton noted that "this year’s commitments highlight the enthusiasm, creativity, and general characteristic of CGI members. They also reinforced our theme of ‘mobilizing for impact.’ So many partners have come together, to increase their impact by drawing upon each other’s strengths and creating new partnerships to truly put ideas into action: this is what CGI is all about. I am so grateful to everyone who joined us this year, whether in person or online, and who continue to work with us to create a better world.”
The CGI announced two major Commitments to Action focusing on health and on animal preservation. First, Former President Clinton, joined by Don Thompson, President and CEO of McDonald's, and Dr. Howell Wechsler, CEO, Alliance for a Healthier Generation, founded by the Clinton Foundation and American Heart Association, announced a partnership to increase customers' access to fruit and vegetables and help families and children to make informed choices in keeping with balanced lifestyles.
Former Secretary [Hillary] Clinton, Chelsea Clinton, and African government leaders including the Presidents of Burkina Faso, Cote D'Ivoire, Gabon, Malawi, Tanzania, Uganda, and Ministers from Botswana and Zambia made an announcement with leaders of the Wildlife Conservation Society, the African Wildlife Foundation, the World Wildlife Fund, Conservation International, the International Fund for Animal Welfare, Save the Elephants, the Howard G. Buffett Foundation, and the Jane Goodall Institute regarding Partnership to Save Africa's Elephants, a new Commitment to Action aiming to end poaching by addressing poaching, trafficking, and international demand.
These are good plans. I wish the CGI all the success possible.
Monday, September 23, 2013
Speaking at the AICPA Not-for-Profit Industry Conference earlier this year, Nancy Young, who is part of the Business Assurance Services Group of Moss Adams, outlined the behavioral red flags of fraud perpetrators' lifestyles, as listed by the Association of Certified Fraud Examiners (ACFE). The Nonprofit Times today reproduced the list:
- Living beyond their means: 43.0 percent
- Financial difficulties: 36.4 percent
- Control issues: 22.6 percent
- Unusually close with vendors/customers: 22.1 percent
- Wheeler-dealer attitude: 19.2 percent
- Divorce or family problems: 17.6 percent
- Irritability, suspiciousness/defensiveness: 14.1 percent
- Addiction problems: 11.9 percent
- Refusal to take vacations: 10.2 percent
According to the Times, Young also said that white-collar criminals share certain characteristics, some of which I find pretty interesting:
- Likely to be married.
- Member of a church.
- Educated beyond high school.
- No arrest record.
- Age range from teens to older than 60 (although 31-50 is the largest group).
- Socially conforming.
- Employment tenure from one to 20 years.
- Acts alone 70 percent of the time.
- Males tend to steal larger amounts than females.
This leads me to wonder: in dealing with nonprofits, whom can we trust?
Tuesday, September 17, 2013
ARNOVA's annual conference, titled Recession, Renewal Revoluation? Nonprofit and Voluntary Action in an Age of Turbulence, will be held in Hartford, CT on November 21-23. As usually, there are an enormous number of sessions to choose among, including 19 programs in the Public Policy & Law track alone. Sessions that looked to be of particular interest to legal scholars include:
- Defining Our Boundaries by the Legal Definition: Implications for a Changing World of Research and Practice
- Regulatory Waves: Understanding and Predicting Local, National and International Intervention Policies in the Nonprofit Sector
For those of you not attending ARNOVA's annual conference this year, DePaul and Northern Illinois are sponsoring The Future of NGO Studies Conference in Chicago on November 19-20. While the full list of presenters is too long to reproduce here (see the Sessions list), for the Tuesday evening plenary discussion the panelists will be:
- Erica Bornstein, University of Wisconsin-Milwaukee (Anthropology)
- Inderpal Grewal, Yale University (Women's, Gender, and Sexuality Studies)
- David Lewis, London School of Economics (Social Policy)
- Steven Sampson, Lund University (Anthropology)
- Aradhana Sharma, Wesleyan University (Antrhopology)
- Cleta Mitchell of Foley & Lardner
- Marcus Owens of Caplin & Drysdale
- John Pomeranz of Harmon, Curran, Spielberg & Eisenberg
Given their public comments to date, I expect the presenters will not have identical views regarding either what happened or what should be done. The Institute's William Schambra will moderate.
Thursday, April 4, 2013
The Hudson Institute's Bradley Center for Philanthropy and Civic Renewal presents in Washington, DC on Tuesday, April 16th a lunchtime discussion on the charitable contribution deduction. Registration and further details available online. Here is the agenda:
Program and Panel
Registration, lunch buffet
Introduction by Bradley Center Director William Schambra
Stanley Katz, Professor of Public and International Affairs at Princeton University
Rob Reich, Associate Professor at Stanford University
Alex Reid, Counsel in Morgan Lewis’s Tax Practice
Wednesday, April 3, 2013
The Urban Institute will be hosting in Washington, DC on Monday, April 15th a conference titled Charity and Government: Tax Reform and Beyond. Registration is required. The conference is co-sponsored by the Urban Institute's Center on Nonprofits and Philanthropy and the Alliance for Charitable Reform.
Here is the agenda and the presenters:
Session One: As an Independent Sector, Is Charity a Substitute, Complement, Adversary, or Something Else for Government?
Moderator: Eugene Tempel, Indiana University
Speakers: Adam Parachin, University of Western Ontario, Eugene Steuerle, Urban Institute, Joseph Thorndike, Tax Analysts, University of Virginia
Session Two: What Is the Definition of Charity, and Who Decides How to Define It?
Moderator: John Tyler, Kauffman Foundation
Speakers: Bradford Gray, Urban Institute, Daniel Halperin, Harvard Law School, Alex Reid, of counsel, Morgan Lewis, Marion Fremont-Smith, Hauser Center for Nonprofit Organizations, Harvard University
Session Three: Philanthropy’s Relationship to Current Policy Debate
Moderator: Elizabeth Boris, Urban Institute
Speakers: Arthur Brooks, American Enterprise Institute, Joanne Florino, Philanthropy Roundtable, William Galston, Brookings Institution, Pat Read, consultant
Friday, February 15, 2013
I was fortunate enough to be invited to present at a conference hosted by Columbia Law School's Charities Law Project last week. Featuring presentations and draft papers (available on the conference website) from a who's who list of charity law experts from the academy, state AG offices and other agencies, and private practice, the conference provided an incredible opportunity to consider and discuss emerging issues in the regulation of charities. Topics covered included:
- Jurisdictional Boundaries: State/Federal, State/State Relationships
- The Fundamental Role Of States In Governance Issues
- Emerging Issue: Political Activity/Advocacy By The Sector & The States' Role
- Transparency, Media And Technology: New Expectations, New Opportunities
- Emerging Issue: Challenges & Interests Of States In Social Mission/Hybrid Organizations
- Mapping The Trajectory: The Changing Role Of The State Regulators
- Emerging Issue: State Jurisdiction Over Religious Organizations
- Emerging Issue: Changing Landscape Of Charitable Solicitation
- Emerging Issue: The Dynamic Role Of States In Nonprofit Healthcare
- Federal Partners
- Envisioning The Future: New Structures
The conference organizers also gathered an extensive set of additional resources that will be helpful to anyone interested in the conference topics.
Friday, December 28, 2012
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.
Monday, August 20, 2012
An article posted in today's Chicago Tribune digital edition (free subscription required), which appears to have originally come from the Economist, is a very interesting look at the finances and financial management of the Catholic Church in America. Using data from bankruptcy filings by dioceses that faced large damage awards over sexual abuse, the article paints a picture of financial mismanagement, if not skulduggery. One paragraph sort of sums it up:
The picture that emerges is not flattering. The church’s finances look poorly co-ordinated considering (or perhaps because of) their complexity. The management of money is often sloppy. And some parts of the church have indulged in ungainly financial contortions in some cases--it is alleged--both to divert funds away from uses intended by donors and to frustrate creditors with legitimate claims, including its own nuns and priests. The dioceses that have filed for bankruptcy may not be typical of the church as a whole. But given the overall lack of openness there is no way of knowing to what extent they are outliers.
The last sentence is, I think, particularly important. Churches do not have to file a Form 990 or an application for exemption on Form 1023. We know virtually nothing about how they manage their money, yet we grant tax exemption virtually automatically to any entity calling itself a church.
Others have questioned whether churches should receive tax exemption at all (I happen to be in the camp that says "no," provided they get an unlimited deduction for what I would classify as charitable expenditures, which would not include building expenses/maintenance/pastor and staff salaries, etc. - but I realize this is an issue on which reasonable people can and should disagree). But I view this story as less about the merits of exemption than the merits of financial disclosure by exempt charities. Churches need to file a 990 like everyone else. We need disinfecting sunlight on their financial operations, particularly when folks starting hiding behind God as the rationale for their actions, many of which end up being very un-god-like. And for those of you who might claim that subjecting churches to information filing on a 990 is a violation of the free exercise clause . . . well, I'd like to see that case litigated.
Thursday, August 2, 2012
The Columbia Law School Charities Project has released two new webinars for public viewing: “The IRS and Charities Regulation: A Primer,” and “Social Enterprise and Hybrid Corporate Forms: Emerging State Regulatory Perspectives and Responses.” According to the Charities Project, the webinars are designed to help inform the nonprofit sector, regulators, practitioners and academics about topical issues at the intersection of state regulation and the charitable sector.
Monday, June 18, 2012
The Law and Society Association's 2012 International Meeting in Honolulu earlier this month featured the following panel and additional papers relating to nonprofits:
- Charities and Public Policy Panel
- Nina J. Crimm (St John's) & Laurence H. Winer (Arizona State),
- Terri Lynne Helge (Texas Wesleyan), Reforming the Private Benefit Doctrine
- Grace S. Lee (Alabama), Toward a More Dynamic Theory Regarding the Charitable Deduction
- Henry Ordower (Saint Lewis), Charitable Contributions of Services
- Miranda L. Stewart (Melborne), Doing Business to Do Good: Should We Tax the Business Profits of Not for Profits
- Meredith A. Cartwright (York), Tax Subsidies for the Religious Training of Children in Religious Schools in US and Canadian Tax and Constitutional Law: “Public” or “Private” “Personal” (In)Tangible Benefits of a Suspect “Gift”
- Daniel B. Rubin (Michigan), A Population Health-Based Approach to Nonprofit Hospital Tax Exemption
- Richard Schmalbeck (Duke), The Role of Declaratory Judgments in Shaping the Concept of Charity
The Charities Regulation and Oversight Project, which is part of the National State Attorneys General Program at Columbia Law School, has issued a call for papers for its February 2013 conference "The Future of State Charities Regulation". Here are the details:
Thursday, April 19, 2012
In her remarks to the Georgetown University Law Center program on Representing and Managing Tax-Exempt Organizations, IRS Exempt Organizations Director Lois Lerner discussed the findings of an IRS study of its governance checksheet, which is comprised of a list of questions used by IRS agents to determine the governance practices of an exempt organization. In October 2009, IRS agents began completing the checksheet at the completion of every public charity examination. The result is over 1300 checksheets that were examined as part of the study.
The study's analysis found "a statistically significant correlation between questions related to some governance practices and tax compliance." The correlative questions are, in Lerner's words:
1. Organizations with a written mission statement are more likely to be compliant;
2. Organizations that always use comparability data when making compensation decisions are more likely to be compliant;
3. Organizations with procedures in place for the proper use of charitable assets are more likely to be compliant; and
4. Organizations where the 990 was reviewed by the entire board of directors are more likely to be compliant. This is an important point and one I'd like to highlight. It indicates that having your entire board engaged in what is being reported on the 990 is not only helpful, but it correlates to better compliance.
Lerner also stated that "[o]n the flip side, among the organizations we examined, we saw that those that said control was concentrated in one individual, or in a small, select group of individuals, were less likely to be tax compliant."
Diversion of Assets Initiative: Lerner also announced a new audit initiative focusing on tax-exempts that divert their assets for their own use or for uses not in furtherance of their charitable purposes. Lerner reported that approximately $170 million in assets were diverted in instances involving theft, embezzlement, or Ponzi schemes. With respect to 82 organizations, civil or criminal charges were brought against the responsible party. The charges were typically pursued by the organizations themselves or local authorities, not the IRS. The IRS compiled this information from Forms 990 as well as the internet and other publicly-available information.
(For additional discussion: Daily Tax Report)
As reported by the Daily Tax Report, at a Georgetown University Law Center program yesterday on Nonprofit Governance, Missouri Attorney General Bob Carlson provided simple advice - nonprofit boards can avoid potential legal liability for a breach of fidicuary duties if their reaction to such breach "is quick and shows immediate action." Carlson provided the example of a nonprofit executive director that failed to share financial information with the board of the directors, resulting in the board being completely unaware of the organization's near collapse. Upon learning of the dire financial status of the organization, the board immediately fired the executive director, installed an interim director, “and essentially righted the ship on the fly, so the organization did not go under.” Their prompt reaction, opined Carlson, prevented them from being sued. Carlson stated that he typically gives Board members the opportunity to correct a fiduciary problem, and only pursues lawsuits if there is not a sufficient response.
Along with IRS Exempt Organizations Director Lois Lerner, Carlson advised erring on the side of transparency, with both officials providing examples of items that nonprofits should considered posting to their websites: financial statements, executive compensation, and the minutes of meetings. He believes that more transparency ultimately leads to better fundraising ability, because donors often complain about their lack of knowledge with respect to the use of their donations. Both Carlson and Lerner agreed that recruiting and retaining "engaged" board members is essential to smooth operations and avoidance of trouble. In addition, board knowledge of its governance responsibilities leads to overall better decisionmaking.
NOTE: Lerner advised that the IRS will release the preliminary results of its study of governance on April 19, 2012.
Tuesday, April 3, 2012
Those of you who follow the Social Enterprise movement will be happy to know that there was an interesting-looking SE conference last week sponsored by students at the Harvard Business School and the Harvard Kennedy School of Government. Two quick observations.
First, the existence of an SE conference does not fit with my somewaht distant memory of Harvard B-School students. I remember them in the 1980s preening at the Boat House bar in Cambridge boasting about how wealthy they were going to be. Things have changed, I guess.
Second, the conference website reports that it included "1,500 Engaged Attendees, 75 Innovative Speakers and Presenters, 40 Vibrant panels and Workshops, and 4 Thought-Provoking Keynotes." Having perused the conference brochure, I can confirm that it seems to have been a dynamic gathering; however, such over-reliance on adjectives (and exclamation points!!) leaves the young social entrepreneurs open to additional razzing about the language they use and the charge that the whole movement is marketing rather than evolutionary change.
Thursday, October 13, 2011
The University of Kentucky College of Law hosted yesterday a conference on the recent book Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts authored by Nina J. Crimm (St. John's) and Laurence H. Winer (Arizona State). Commentators were Dean David A. Brennen, Joshua A. Douglas (Kentucky), Rev. Nancy Jo Kemper (Transylvania University) and Paul E. Salamanca (Kentucky). The book is a comprehensive consideration of the constitutional and federal tax issues raised by religious leaders preaching politics from the pulpit and includes thought-provoking proposals for lessening the constitutional tensions in this area.
Wednesday, May 11, 2011
The Daily Tax Report reports on the Treasury, IRS, and Congressional staff representatives' updates on exempt organizations at the ABA Tax Section meetings in Washington, DC at the end of last week.
Treasury attorney-adviser Ruth Madrigal provided updates on the guidance regarding program-related investments for private foundations under IRS §4944 (excise tax on jeopardy investments), stating that Treasury is considering "the double bottom line," "doing well by doing good," and "impact investing" as part of the guidance. Program-related investments are being considered as a vehicle for redirecting charitable donations into communities.
Guidance projects related to health care reform include the exemption of accountable care organizations and the provision of insurance thorugh exempt health care exchanges.
Remaining projects from the Pension Protection Act include Type III supporting organizations, §4943 excess business holding rules, and donor-advised funds.
Exempt Org-Related Legislation
A Senate Finance Committee staffer discussed proposed hearings on exempt organizations with respect to tax reform, including making permanent certain temporary provisions applying to exempts, a limitation on the amount of charitable donations a taxpayer can itemize, and a flat excise tax on private foundations (which is included in President Obama's 2012 proposed budget).
Joint Tax Committee tax legislative counsel, Gordon Clay, opined that the defintion of "charity" has been substantially broadened over the years, raising the question of whether "preferential treatment should be given to exempts that engage in the traditional helping the poor-type purposes." In addition, the commerciality doctrine (exempts with a direct taxable counterpart) continues to rear its ugly head, raising the viability of exemption for organizations plagued with that problem.