Friday, April 7, 2017

South Carolina Contemplates Additional Reporting Requirements

South Carolina State Representative Bill Herbkersman has introduced legislation that will require some nonprofits to make more frequent and more detailed disclosures about their financials. The bill covers entities organized under the South Carolina Nonprofit Corporation Act (Chapter 31, Title 33). The proposed bill reads:

 

A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 11-1-130 SO AS TO REQUIRE CERTAIN NONPROFIT CORPORATIONS THAT RECEIVE MORE THAN ONE HUNDRED DOLLARS IN PUBLIC FUNDS TO SUBMIT A QUARTERLY EXPENDITURE REPORT TO THE AWARDING JURISDICTION, AND TO PROVIDE THAT THE AWARDING JURISDICTION MUST MAKE THE REPORTS AVAILABLE TO THE PUBLIC.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Chapter 1, Title 11 of the 1976 Code is amended by adding:

"Section 11-1-130.    (A)    Any entity organized pursuant to Chapter 31, Title 33 that received more than one hundred dollars in public funds from a state agency or political subdivision in the previous calendar year or the current calendar year, must submit a quarterly expenditure report to the jurisdiction awarding the funds.

(B)    The expenditure report must include:

(1)    the amount of funds expended;

(2)    the general purposes for which the funds were expended; and

(3)    any other information required by the jurisdiction so as to increase the public's knowledge of the manner in which the funds are expended.

(C)    The expenditure reports must be made available by the awarding state agency or political subdivision in accordance with the requirements of Chapter 4, Title 30; however, the entity receiving the funds is not subject to such disclosure provisions."

SECTION    2.    This act takes effect upon approval by the Governor and applies to any public funds received thereafter and within three calendar years thereof.

 

Proponents claim that because South Carolina nonprofits employ ten percent of the state workforce and are the recipient of over 130 million volunteer hours, South Carolina citizens deserve a more accurate accounting of what these organizations do with their money. It is further claimed that because of inconsistent reporting requirements, it is difficult to compare and assess different organizations, thus making hold them accountable a daunting task.

 

 

 

David A. Brennen

April 7, 2017 in Current Affairs, In the News, State – Legislative | Permalink | Comments (0)

Wednesday, April 5, 2017

Federal Nonprofit Fraud Case Delayed

Nonprofit Quarterly reports on the trial of Jonathan Dunning, former CEO of Birmingham Health Care and Central Alabama Comprehensive Health. Mr. Dunning was indicted on 122 counts alleging that he shifted approximately $14 million of federal funds to outside businesses that he controlled.

The case has been postponed due to complexity, undoubtedly due to another nonprofit being added into the case. A credit union, that government officials claim was central to the scheme, had many Birmingham Health Care upper executives on its board of directors. The National Credit Union Administration claims that the credit union in question became “insolvent due to management operating the credit union in an unsafe and unsound manner including a serious conflict of interest with the credit union’s sponsor, a continuous lack of action by management to address issues, persistent non-compliance with established timelines for submitting reports, and problems with the credit union’s books and records.”

At issue, among other things, is whether Mr. Dunning committed conspiracy, bank fraud, and/or money laundering in his dual role of nonprofit CEO, and controller of private firms. Also, whether and to what extent the former CEO can be held liable for controlling his replacement to perpetuate the fraud. Allegedly, once the fraud was first being discovered, Mr. Dunning stepped down, but handpicked his successor and exercised complete control over him.

The original story covering this nonprofit mismanagement and conflicts of interest scheme can be read here.

 

David A. Brennen

April 5, 2017 in Current Affairs, Federal – Judicial, In the News | Permalink | Comments (0)

Tuesday, April 4, 2017

Missouri Latest to Address 501(c)(4) Disclosures

Missouri joins the company of Illinois, Georgia, Massachusetts, Michigan, and New York on a list of states whose Governors have set up nonprofit groups to help raise money for their campaigns. These nonprofits, organized as 501(c)(4) entities, allow said organizations to avoid disclosing who their donors are, and how they spend their money. However, these organizations may not spend more than half of their money on political activities, a rule monitored by the IRS.

Some commentators believe these 501(c)(4) organizations are being formed to circumvent campaign finance laws. In an attempt to close this loop-hole, Missouri state Senator Rob Schaaf has sponsored a bill to require such groups to identify their donors. Senator Schaaf believes increased transparency in funding will be a step in the right direction, stating “I think it’s a problem that [political candidates have] this desire to keep the sources of [their] money hidden.”

Those with opposing views, such as Republican consultant Greg Keller, believe that donors have the right to have their identity kept private. Keller stated “I think [501(c)(4)s] are becoming more common, that’s what I believe happens with campaign finance law. I think that every single time you try to micromanage how people are funding political organizations, you end up with more politics, not less.”

Campaign finance is a delicate issue unlikely to be resolved in the near-term. Former Missouri GOP chairman John Hancock believes that “as long as the law allows you not to disclose who your donors are, I think you’re going to see this replicated all across the country.” Time will tell if the trend continues to spread into other states.

 

David A. Brennen

April 4, 2017 in Current Affairs, In the News, State – Executive, State – Legislative | Permalink | Comments (0)

Monday, April 3, 2017

Illinois Nonprofit Hospitals Maintain Property Tax Exemption, For Now

A recent article explains the decision of the Illinois Supreme Court to overrule the appellate court that determined a 2012 state law that exempted nonprofit hospitals from paying property taxes was unconstitutional. The law in question allows nonprofit hospitals to avoid paying property taxes if the value of their charitable service exceeds the value of the property taxes that would have been collected but-for the statute.

Although the Illinois Supreme Court remanded the case, they did not explicitly rule on the constitutionality of the law. Therefore, Illinois nonprofits should be reluctant to rejoice just yet. At issue is what is considered “charity” for a nonprofit hospital. Ultimately, the Illinois Supreme Court ruled the appellate court overstepped its authority when it ruled the constitutionality issue was separate from the rest of the case.

For the time being, nonprofit Illinois hospitals may still enjoy their tax exemption. However, the long-term ramifications of this litigation are far from certain.

David A. Brennen

April 3, 2017 in Current Affairs, State – Judicial, State – Legislative | Permalink | Comments (0)

Wednesday, February 22, 2017

Hundreds of Churches Appear to Receive Exemption Determinations Using Form 1023-EZ

Today, the IRS released complete publicly available data on the over 105,000 organizations that were approved for tax-exemption using the streamlined application process, Form 1023-EZ from its inception in July 2014 through December 2016.  From the IRS news release:

The data on IRS.gov is available in spreadsheet format and includes information for approved applications beginning in mid-2014, when the 1023-EZ form was introduced, through 2016. The information will be updated quarterly, starting with the first quarter of calendar year 2017. The IRS’s Tax Exempt and Government Entities division approved more than 105,000 applications for exemption submitted on the Form 1023-EZ from 2014 through 2016.

In reviewing the data for these organizations, I noted something odd -- there was an organization approved using the streamlined process which by its name appeared to be a church.  According to the Form 1023-EZ instructions and Form 1023-EZ eligibility worksheet, churches are not eligible to use Form 1023-EZ and instead must use Form 1023 to apply for a determination letter from the IRS.  In particular, the eligibility worksheet states that if the applicant answers "yes" to any question on the worksheet, the applicant is not eligible to use Form 1023-EZ.  Question 12 on the worksheet asks, "Are you a church . . .?"  Applicants using Form 1023-EZ must attest on the form that the applicant has completed the eligibility worksheet and is eligible to use the form. 

The Form 1023-EZ is filed electronically and is composed of several self-certifying statements made by the applicant to the effect that the applicant qualifies for tax-exempt status as an organization described in Section 501(c)(3).  No supporting documentation is required to be submitted with the application so that the IRS can verify the applicant's qualification for tax-exemption.  With over 105,000 organizations approved and no way to verify the information, I was not surprised that perhaps a few organizations not eligible to file slipped through the cracks. 

However, I was curious to see just how many churches incorrectly used Form 1023-EZ to obtain an IRS determination letter.  I conducted a search of the names of all of the organizations approved for exemption using Form 1023-EZ for the word "church" using the new searchable data released by the IRS.  I found 623 of the approved organizations had "church" in the name.  Upon closer review, not all of these organizations appeared to be churches.  Some appeared to be a separately organized ministry of a church or a church foundation or an organization in a town named "Churchville." But in my cursory review of the names of these 623 organizations, I would estimate that over 90% appeared to be churches.  Some of these organizations provided website addresses, and a visit to these website addresses confirmed these organizations operated as churches.  Even though churches are not eligible to file Form 1023-EZ, all of these organizations attested that they had completed the eligibility worksheet and were eligible to use Form 1023-EZ.

Churches are not required to file an application for exemption to be exempt as a church described in Section 501(c)(3).  However, many churches opt to apply for exemption so that the church can receive an IRS determination letter stating that the church qualifies for exemption.  The IRS determination letter serves as evidence to donors that the church is recognized as being tax-exempt and contributions made to the church qualify for the charitable contribution deduction. 

The churches that received an IRS determination letter using the Form 1023-EZ process may very well meet the requirements for exemption as a church described in Section 501(c)(3).  But the IRS decided that it wanted to take a closer look at the applicants claiming to be churches, and thus requires them to use the normal Form 1023 process.  By inappropriately using the Form 1023-EZ process, these churches have gotten the benefit of voluntarily applying for tax exemption - the IRS determination letter - without having to go through the scrutiny of the normal Form 1023 application process as the IRS requires.

Additionally, this information is but one example of the problems with the streamlined Form 1023-EZ process.  A quick review of the organization's name (for example "** Baptist Church" or "** Church of Christ") should have given one pause about whether the organization was eligible to use Form 1023-EZ.  This should have resulted in an inquiry to the organization about whether it planned to operate as a church, or one could have visited the organization's website provided on the form to see that the organization had regularly scheduled church services and appeared to operate as a church.  The organization then should have been directed to apply using Form 1023. All of these organizations attested that they were eligible to use Form 1023-EZ, but a quick independent verification of this attestation likely would have shown the attestation to be false in a significant number of cases.  This is one small example of the need to independently verify the applicant's statements made on the Form 1023-EZ, or organizations which do not meet the requirements for exemption or the eligibility requirements to use Form 1023-EZ will inappropriately be approved for exemption. 

For additional examples of the need for independent verification of the information provided on Form 1023-EZ, see the Taxpayer Advocate Service 2015 Report to Congress and the Taxpayer Advocate Service 2016 Report to Congress.

 

TLH

 

 

February 22, 2017 in Current Affairs, Federal – Executive | Permalink | Comments (1)

Friday, February 3, 2017

That's me in the corner/ that's me in the spotlight/ losing my religion*

...but gaining a tax deduction!

At the recent National Prayer Breakfast, President Trump stated:

It was the great Thomas Jefferson** who said, the God who gave us life, gave us liberty. Jefferson asked, can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God. Among those freedoms is the right to worship according to our own beliefs. That is why I will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution. I will do that, remember.

Some may not know the term “the Johnson Amendment,” but I am guessing that most of the readers of this blog would be familiar with Code Section 501(c)(3)’s prohibition on election intervention (“and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”)   Famously, Lyndon Johnson was somewhat irritated by negative comments made by a tax-exempt organization (note: not a church… ) during his campaign for re-election to the Senate; thus the Johnson Amendment adding the prohibition on electioneering was born in 1954

Of course, “totally destroying” statutory provisions is traditionally the prerogative of Congress, so it remains to be seen whether this change will come to pass.   A bill repealing the Johnson Amendment is introduced regularly each legislative session and rarely makes any progress; query if the current political climate would give it more traction.   One wonders if the change takes the form of a repeal of the Section 501(c)(3) language (which would open electioneering to all c3s) or a special exception just for churches or religious organizations.   Finally, would such repeal include rules that mirror the income tax provisions that disallow deductions for membership dues allocable to lobbying?   If not, I suspect that a large number of political donors of all stripes will suddenly find religion right quick.

For further discussion of these issues, please see this piece by the most awesome Ellen Aprill in the Washington Post, who has probably forgotten more about the political and lobbying rules for nonprofits than I ever hope to know.

EWW

*With apologies to R.E.M.

**cough** This is me not commenting on the fact that Trump is quoting Thomas Jefferson, author of the First Amendment.  Of course, all political commentary (or non-commentary, as the case may be) is my own individually and should not be attributed to anyone else.  EWW

February 3, 2017 in Current Affairs, Federal – Executive, Federal – Legislative, In the News | Permalink | Comments (1)

Wednesday, January 25, 2017

H-1B Visa Program Facing Unclear Future

The NonProfit Times reports that the new year and new administration brings uncertainty to the future of the H-1B visa program. “The H-1B visa is a non-immigrant visa that allows for-profit companies and nonprofits to employ people in graduate level fields that require expertise in areas such as science, technology, engineering and mathematics (STEM).”

The program is a vital way in which universities attract and retain the best and brightest minds across the globe. In 2016, 29,227 H-1B applications were approved for non-profits, with almost 27,000 of those being universities. Commentators are concerned that a change in the program could hinder both the quantity and quality of research in American universities.

While President Trump has not taken an official stance on the H-1B program, his insistence on immigration reform leaves the future of the program less than certain. Some of President Trump’s appointees have openly opposed H-1B visas, leading to further speculation of the program’s prospects.

Anita Drummond, a non-profit attorney, stated that the United States higher education sector “prides itself on being a global citizen, bringing together perspectives and the best of the best.” Hopefully the new administration can build on this pride, offering our students a place where they may thrive.

 

David A. Brennen

January 25, 2017 in Current Affairs, In the News | Permalink | Comments (0)

Tuesday, January 24, 2017

Accumulating Digital Assets for Non-Profits

A recent article from Non-Profit Quarterly speaks to the ability of not-for-profits to accumulate valuable assets, that is, social media capital. Although not appearing on the balance sheet, a solid social media presence can help non-profits reach their target audience both more efficiently and effectively.

While many non-profit managers may assume that spending valuable resources on a social media presence may be frivolous, in the end it may be a more economical way to solicit donations and spread the organizational mission to others. On the flip side, having immediate access and accessibility to these organizations changes the competitive landscape of non-profits.

The article brings to light an outline of how to both understand social media capital, and leverage it to your organization’s benefit. Although there are currently no accounting methods to account for social media assets, with the growing importance of social media coupled with the massive value associated with these presences, it is not impossible to envision a time in the coming years where these assets appear on the balance sheet, fundamentally changing how non-profits operate.

 In a digital age it is of the utmost importance of all those involved in the management of a non-profit to understand how their organizations can build a sustainable advantage, lowering their operating costs while maximizing their potential reach.

David A. Brennen

January 24, 2017 in Current Affairs, Web/Tech | Permalink | Comments (0)

Saturday, January 21, 2017

Is Protest Travel Tax-Deductible?

More than a million people attended protests and marches over the weekend, including half a million in Washington DC.  Gettyimages-632287522_slide-dd0cdc47115cc7c17152c8d4bffd893dfc7f7260-s900-c85Protests and social movements are obviously an important part of civil society, but are rarely the focus of nonprofit scholars (aside: why is this?).  But can one deduct the out-of-pocket expenses for traveling to participate in a protest/march?

Maybe.  The tax code allows an itemized deduction for contributions made to a recognized 501(c)(3) nonprofit, which includes out-of-pocket expenses (such as travel) incurred while performing volunteer services for a nonprofit.  Under some circumstances, traveling to a demonstration could meet this standard.

Continue reading

January 21, 2017 in Current Affairs | Permalink | Comments (0)

Thursday, January 5, 2017

Happy New Year!

Happy New Year nonprofit champions and scholars!  It's time for the obligatory predictions-about-new-year post:  What legal and policy issues will be among the hottest in the new year?  image from 321happynewyear.com With the caveat that I'm particularly bad at predicting the future (me, 2006: "texting will never catch on"), I'll throw out a few USA-specific possibilities:

  • Changing government funding environment, with potential for sharp decreases in both federal and state funding of health and social services
  • Even more diminished role for IRS in charity oversight, shifting power to state attorneys general
  • Additional attempts by to withhold government funding from nonprofits based on ideological disagreements (e.g., Planned Parenthood, anti-BDS laws)
  • Debate over the extent of funding houses of worship and religious programming (e.g., the upcoming Trinity Lutheran case in the Supreme Court)
  • Increased state disclosure mandates for politically active nonprofits (e.g., New York)

What else?  What do you think will be the biggest issues facing the nonprofit sector this year?

@JosephWMead

January 5, 2017 in Current Affairs | Permalink | Comments (0)

Sunday, January 1, 2017

Charitable Status for "Hate Groups"?

A recent Chronicle of Philanthropy study reports that over 50 "hate groups" have  been granted tax exemption as 501(c)(3) charitable organizations:

The federal government has granted tax-exempt status to more than 60 controversial nonprofits branded by critics as "hate groups," including anti-immigrant and anti-gay-rights organizations, white nationalists, and Holocaust deniers, according to a Chronicle of Philanthropy analysis.

The issue is a thorny one for the Internal Revenue Service, which must balance First Amendment rights against concerns that it is essentially granting government subsidies to groups holding views that millions of Americans may find abhorrent. Complicating matters, the IRS is already under fire from critics who say the agency has discriminated against conservative political organizations.

The Southern Poverty Law Center has compiled a list of nearly 900 so-called hate groups, most of them on the far right (although the roster also includes radical Islamists, black separatists, and other fringe groups) and many with deceptively innocuous-sounding names. The Chronicle analysis found that 55 of those organizations are registered as charities and eight are 501(c)(4) "social welfare" groups, which also enjoy tax exemptions.

Many groups on the list vehemently dispute the "hate" designation and say the Southern Poverty Law Center — known as SPLC and itself a tax-exempt organization — is a left-wing attack group.

For commentary on this issue, see Philip Hackney (LSU), "White Nationalists Groups are Charitable? Apparently so According to IRS"(The Surly Subgroup), and Eugene Volokh (UCLA), "No, the IRS may not deny tax exemptions on the grounds that a group is a supposed ‘hate group’" (The Washington Post op-ed).

TLH

 

January 1, 2017 in Current Affairs | Permalink | Comments (0)

Friday, December 16, 2016

New York Organization Seeking to Invalidate Transparency Law

A new development in the NY bill (reported on yesterday) aimed at increasing transparency in 501(c)(3) and 501(c)(4) organizations has emerged. Citizens Union of New York has filed suit in federal court challenging the new law, claiming the regulations impede on their right of free speech. The group argues the law “’chills’ speech by forcing donors to choose between ‘exercising speech . . . and subjecting themselves to burdensome obligations and public disclosures.’” The organization further believes the disclosure requirements will dissuade donations, directly impacting their operations. Will other non-profits in New York feel the same?

 

David A. Brennen

December 16, 2016 in Current Affairs, In the News, State – Legislative | Permalink | Comments (0)

Thursday, December 15, 2016

New York Increasing Transparency Amongst 501(c)(3) and 501(c)(4) Organizations

New York Governor Andrew Cuomo signed into law Bill No. A. 10742/S. 8160 in an effort to increase transparency between donations coming from 501(c)(3) organizations going to 501(c)(4) organizations.

Some of the upcoming changes for 501(c)(4) organizations include a dramatically decreased amount (decreasing from $50,000 to $15,000) of funds spent on lobbying that triggers a source of funding report, and added more details to be included in said report.

Among other things, 501(c)(3) organizations now must fill out detailed reports for gifts to 501(c)(4) organizations that are greater than $2,500.

A detailed memo from the Lawyers Alliance for New York outlines the implications for non-profit organizations and exactly what the new regulations are.

 

David A. Brennen

December 15, 2016 in Current Affairs, In the News, State – Legislative | Permalink | Comments (0)

Wednesday, December 14, 2016

Organization Allegedly Helps Hundreds of Corporations Evade Taxes

The Justice Department is investigating South Beach Missions of Oregon for allegedly fraudulently registering corporations as religions, entitling said corporations to 501(c)(3) status. The Justice Department believes that South Beach Missions is intentionally duping the federal government, and showing people how to set up phony churches in order to protect their assets from taxes. The government claims the organization has registered 126 active corporations, and 343 inactive ones, leading to “substantial” harm to the tax payer left footing the bill.

Unsurprisingly, South Beach Missions claims they have done no wrong, and believe they are acting within their First Amendment rights. Ted Landry, president of South Beach Missions, firmly believes he is helping people practice their legitimate religion. Mr. Landry believes the government has no place in defining what is and what is not religion, stating “you’re the only one who gets to figure it out.” South Beach Missions insists that they do not give out legal advice, despite the fact they circulate a 12-page booklet on the legality of corporations and churches.

There are obvious public policy concerns with people being able to establish pseudo-religions in the name of tax breaks. Further, unsuspecting churches registered by South Beach may face a crippling tax liability down the road if the government finds their church is not exempt, even if they were honestly practicing their religion. As obvious as the need to abate tax fraud is, so is the need for the government to allow for the freedom of religion, and adhere to Constitutional principles. It will be interesting to see how this is resolved.

 

David A. Brennen

December 14, 2016 in Church and State, Current Affairs, In the News | Permalink | Comments (0)

Tuesday, December 13, 2016

Are changes to chartitable gifts coming with the new year, and new administration?

A recent Bloomberg article by Colleen Murphy outlines some major potential changes impacting charitable giving that could come soon after President Elect Trump takes office.

The author believes alterations of charitable giving deductions could take place in the near future. Although there is no concrete plan or proposal, the House Ways and Means Committee “will develop options to ensure the tax code continues to encourage donations, while simplifying compliance and record-keeping and making the tax benefit effective and efficient.” Clearly, altering the amount one can claim as a tax deduction can significantly impact overall giving to 501(c)(3) organizations.

Another potential change is a cap of itemized deductions individuals may claim. President Elect Trump has proposed a ceiling of $100,000 for individuals and $200,000 for couples looking to subtract itemized deductions from their total tax bill. An expert claims that such a rule could diminish large-scale donations, some of which are vital to the existence of many tax-exempt organizations.

A third plausible change coming in the near-term is the overall lowered tax rates promised by President Elect Trump. Mr. Trump aims to reduce the current seven-bracket system to a three-bracket system, leading to a reduced tax burden for working and middle-class Americans. Experts are split on how this may impact charitable donations. Some believe that the reduced rate will lessen the impact of itemized deductions, disincentivizing individuals from making contributions. Another school of thought believe the reduced rates could increase donations, incentivizing individuals to “load up on deductions and decrease their tax burden.”

Finally, the author believes that some existing rules could be revamped over the next few years. Hadar Susskind, senior vice president of government relations at the Council on Foundations in Washington, stated that potential changes could include “Creating charitable giving accounts, simplifying the excise tax on private foundations and allowing the rollover of individual retirement accounts to donor-advised funds.”

Time will tell what the new year, and new administration, have in store for the nonprofit tax world.

David A. Brennen

December 13, 2016 in Current Affairs, In the News | Permalink | Comments (0)

Sunday, December 11, 2016

Potential Changes to South Carolina Educational Tax Credits

Legislation has been pre-filed in South Carolina by State Senator Tom Davis in an attempt to double a tax credit program that helps fund disabled students’ private education. The Legislation also plans to offer an additional $25 million in tax credits for the donors whose money would allow poor children to go to private school.

Senator Davis introduced the legislation in response to a South Carolina Supreme Court case where it was declared the state was not doing enough for poor, rural students and their schools. Davis believes making private schools a realistic option for many students is a step in the right direction.

The proposal would offer more tax credits to those who donate to a nonprofit that “makes private school tuition grants to students with disabilities or those who live in poverty.” These credits would allow the donor to reduce their state taxes by up to 60 percent.

South Carolina currently offers up to $10 million in tax credits for donations helping disabled students. The expansion would expand that offering to $25 million, and grant another $25 million specifically for impoverished students.

Whatever program the state ultimately adopts, hopefully it provides students with the quality education they both require and deserve.

 

David A. Brennen

December 11, 2016 in Current Affairs, In the News, State – Legislative | Permalink | Comments (0)

Thursday, November 10, 2016

Fidelity Jumps to Number 1 in the Philanthropy 400

The Philanthropy 400 is the Chronicle of Philanthropy's annual ranking of charities based on private fundraising.   This year, for the first time, the Fidelity Charitable Gift Fund was ranked first, bypassing the United Way, in private fundraising.   According to the Chronicle, it marks "the first time an organization that primarily raises money for donor-advised funds has held the top spot."    Author's aside:  Given the growing popularity of DAFs, wouldn't it be super if we had some regs?  Just sayin'...

I happened to teach DAFs this morning in my Nonprofits class, right after having done a fairly comprehensive unit on the private foundation excise taxes.   It is only after one understands the complexity and burden of Chapter 42 (even after the 2006 PPA changes) can one appreciate the simplicity of the DAFs.    We went through a sample DAF agreement from a well-known community foundation, reviewing the restrictions on distributions and the private cy pres power.   Even with these limitations, my class seemed pretty convinced that as compared to a private foundation, the DAF is the way to go.   Happily from a teaching perspective, they were able to identify the private benefit issue with the commercial providers pretty quickly, although I had few answers on why the IRS didn't originally see it as an issue and continue not to do so.

In any event, the Chronicle has a pro/con opinion section in front of its pay-only firewall, which can be found here (pro) by Howard Husock of the Manhattan Institute and here (con) by Ray Madoff of Boston College.    Husock's article teases a forthcoming report by the Manhattan Foundation on donor advised fund fees and spending, which the Chronicle article says will be released this month, so more to come on that.   While we wait, I think that Husock's answer to the private benefit issue is somewhat weak ("they have to be managed by someone, so why not Fidelity?' seems disingenous) but I do think that he does a better job addressing some of Prof. Madoff's DAF distribution issues.  

You know what else would address some of these issues?  Regulations.    Just sayin'.

EWW

 

 

November 10, 2016 in Current Affairs, Federal – Executive, In the News | Permalink | Comments (0)

Friday, October 28, 2016

Yale's Humor Mag has fun with 501(c)(3) rules, at expense of Yale's student newspaper

Yale Daily News, the oldest student newspaper at Yale--and a separately organized 501(c)(3) tax-exempt organization--found itself under criticism for violating tax law when it endorsed Hillary Clinton for President. The Paper issued an opinion piece entitled "NEWS' VIEWS: Hillary Clinton LAW '73 for President," arguing:Yale_Daily_News

We do not endorse Clinton solely because of the disqualifying flaws of her opponent, Donald Trump, whose campaign has disgusted and astonished our board. ... We endorse her because we, as young people, recognize this election is a turning point for our country. And the choice couldn’t be more clear. Voting for Clinton is our obligation to ourselves and to future generations.

The Yale Record--a student humor magazine--responded swiftly and hilariously:

The Yale Record believes both candidates to be equally un-endorsable, due to our faithful compliance with the tax code.

In particular, we do not endorse Hillary Clinton’s exemplary leadership during her 30 years in the public eye. We do not support her impressive commitment to serving and improving this country—a commitment to which she has dedicated her entire professional career. Because of unambiguous tax law, we do not encourage you to support the most qualified presidential candidate in modern American history, nor do we encourage all citizens to shatter the glass ceiling once and for all by electing Secretary Clinton on November 8.

The Yale Record has no opinion whatsoever on Dr. Jill Stein.

Well played.

@JosephWMead

October 28, 2016 in Current Affairs, In the News | Permalink | Comments (1)

Tuesday, October 11, 2016

When Does “Educating” Become “Lobbying?”

A recent article  by Martin Levine highlights the struggle to define the line between providing education about issues and lobbying for specific legislative outcomes. The center of the controversy revolves around a complaint filed in 2012, when the Center for Media and Democracy and the Common Cause complained to the IRS that the American Legislative Exchange Council (ALEC) was incorrectly classified as a 501(c)(3) organization.

The ALEC characterizes itself as an organization “dedicated to advancing and promoting the Jeffersonian principles of limited government, free markets and federalism at the state level. ALEC accomplishes this mission by educating elected officials on making sound policy and providing them with a platform for collaboration with other elected officials and business leaders.”

The ALEC’s opponents, however, paint a different picture of the organization, claiming “the primary purpose of the organization is to provide a conduit for its corporate members and sponsors to lobby state legislators.”

As evidence of this lobbying, opponents of the ALEC point to a string of tax deductible donations from EXXON to the ALEC totaling over $1.7 million. The ALEC’s official position on climate change only leads to increased suspicions. According to the ALEC, there is no threat to the public from climate change or increased greenhouse gasses. In fact, the ALEC has stated that global warming is beneficial, claiming that “during the warming of the past 100 years global GDP has increased 18-fold, average life span has doubled, and per capita food supplies increased.”

While this information is certainly not determinative of foul play, it does provoke one to question the line between information providing and lobbying.

 

David Brennen

October 11, 2016 in Current Affairs, Federal – Legislative, In the News, State – Legislative | Permalink | Comments (0)

Monday, October 10, 2016

Tax-Exemption and Political Candidate Support

With the Election approaching, many are voicing their opinion on the Johnson Amendment, which denies 501(c)(3) organizations the ability to actively campaign or lobby for a political candidate. Currently, in addition to being unable to support a candidate for political office, nonprofit organizations are also unable to oppose political candidates.

Proponents of the rule fear that allowing nonprofits to advocate for candidates could create unhealthy political factions within their organizations and communities at large. A larger concern is that donations from these organizations would be tax deductible and could exacerbate the level of spending and the political power of large scale donors, heavily influencing electoral outcomes. A statement from the Americans United for Separation of Church and State exclaimed “If individual organizations came to be regarded as Democratic charities or Republican charities instead of the nonpartisan problem solvers that they are, it would diminish the public’s overall trust in the sector and thus limit the effectiveness of the nonprofit community.”

Opponents of the rule, like Republican Party Nominee Donald Trump, believe that organizations have a right to voice their opinion for leaders they believe would best represent them. In a speech to Christian leaders Trump stated “if you like somebody or want somebody to represent you, you should have the right to do it.” Opponents also believe freeing 501(c)(3) organizations from these regulations would increase voter participation and elevate levels of political debate.

It is unlikely that this debate will be solved in the near-term, and certainly not in time to impact the nearing election. However, a fundamental change to the Johnson Amendment could drastically change the way campaigns are ran and financed.

 

David Brennen

October 10, 2016 in Church and State, Current Affairs, Federal – Executive, Federal – Legislative, In the News | Permalink | Comments (0)