Friday, February 3, 2017
...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.
*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
Wednesday, January 25, 2017
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
Tuesday, January 24, 2017
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
Saturday, January 21, 2017
More than a million people attended protests and marches over the weekend, including half a million in Washington DC. Protests 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.
Thursday, January 5, 2017
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? 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?
Sunday, January 1, 2017
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).
Friday, December 16, 2016
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
Thursday, December 15, 2016
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
Wednesday, December 14, 2016
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
Tuesday, December 13, 2016
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
Sunday, December 11, 2016
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
Thursday, November 10, 2016
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'.
Friday, October 28, 2016
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:
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.
Tuesday, October 11, 2016
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.
Monday, October 10, 2016
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.
Tuesday, October 4, 2016
New York AG issues Notice of Violation to Trump Foundation for Failing to Register before Soliciting Donations
Late last week (and widely reported yesterday), New York Attorney General Eric Schneiderman issued an order (with a press release) to the Trump Foundation directing it to cease soliciting donations until it complies with state registration requirements. New York is one of all but a handful of states require that charities planning to ask for donations in their state (under various circumstances) register with the state. Under these laws, charities are typically required to disclose some basic information about the charity, such as the percentage of raised funds that go to fundraising expenses, and the expenses charged by any professional fundraisers hired. For charities that raise funds from multiple states, registration can be an onerous burden, and there has long been a push to streamline multi-state registration to make compliance easier for nonprofits. Yet this is an unusual case, as I'll explain below the break.
Sunday, September 11, 2016
The Boston Globe reports the story of a longtime librarian at the University of New Hampshire who lived a frugal lifestyle and left his $4 million estate to the university:
Robert Morin worked nearly 50 years at the University of New Hampshire library and never seemed to spend any money.
He lived alone, rarely bought clothes, had Fritos and soda for breakfast, drove a 1992 Plymouth, and spent spare time reading almost every book — in chronological order — that had been published in the United States from 1930 to 1938.
Now, more than a year after his death at age 77, a lifetime of frugality has become UNH’s unexpected gift: Morin left his alma mater his entire estate of $4 million — a gold-plated nest egg that few people knew he had.
While a gift of this size may have allowed Morin to require that a building or other area on campus bear his name, Morin's restrictions imposed on the use of the gift by the university were as modest as his lifestyle.
The university will use $2.5 million from the estate on an expanded career center and $1 million for a new video scoreboard at the football stadium. An additional $100,000 will go to the university’s Dimond Library, the only gift specified by the will.
[Morin's financial advisor,] Mullen said he spoke with Morin about using some of the money to fund a scholarship related to library science but said his client wanted UNH to spend almost all of the gift in any way it chose.
Monday, August 29, 2016
Big news from Monongalia County, West Virginia (and I don't mean its party school ranking of number 2... ), but add West Virginia University to the list of charitable institutions making PILOT (payment in lieu of taxes) payments. WVU has done a significant amount of development in downtown Morgantown (yes, we have a downtown...) through private-public partnerships. As a result, a good deal of private property has gone off the tax rolls in this standard issue university town.
Of course, the issue of PILOTs has received a significant amount of discussion as of late (including on this website), as strapped state and local communities look for alternative sources of revenue. For more information, I strongly recommend starting with the Urban Institute website, which has a number of studies on PILOT issues (many of which are authored or co-authored by Evelyn Brody.) In that regard, this really shouldn't be much in the way of new ground... but...
(I am totally dating myself here...)
What I find interesting is that WVU is a public university. I've been searching on the interwebz (to no avail) for more information on how many public institutions - presumably, universities and hospitals - have agreed to PILOTs. (Anyone have any info? I found this helpful article by Langley, Kenyon and Bailin from the Lincoln Institute of Land Policy, circa 2012, that has a number of appendices - a very quick review doesn't seem to show any public institutions.) Part of the rationale for a private nonprofit to enter into a PILOT agreement and voluntarily pay not-taxes is that the alternative could be much, much worse. If a government changes the applicable laws granting nonprofit property tax exemption, the nonprofit will have little control over what happens next, so the devil you know and negotiate is probably better than what is behind Door Number 2.
I would think that with a public university, that calculus would be much, much different. After all, a public university is branch of government, it seems as if it would be much more difficult to muck with the property tax exemption for the University itself - both legally and politically. According to the press release from WVU, its 50 year payment agreement applies only to "private commercial establishments operating on University property for activities that are not a critical part of or integral to serving the academic needs of students." Therefore, while there may be limits on the ability to change the University's tax exemption, query how much play actually exists with attacking the property tax exemption for the University's leased property? (see section 10 versus sections 14 or 17, for example).
Thursday, August 18, 2016
Yesterday's NonProfitTimes reported that the OneOrlando Fund has begun accepting claims from victims and families of victims of the June 12 Pulse nightclub shooting that left 49 dead and dozens more injured. According to fund administrator, Kenneth Feinberg, the entirety of the fund -- estimated at $23 million -- will be disbursed. According to the OneOrlando website, to be eligible, claims must be postmarked by September 12. Claim forms can be found on the site.
Vaughn E. James