Tuesday, September 15, 2015

Nonprofit Hospital Exercising Rights to Religious Accommodation Threatened with Lawsuit

The Washington Post reports that, after Catholic hospital Genesys Regional Medical Center denied a request from Jessica Mann to perform a tubal ligation following the future delivery of her baby by Caesarean section, Mann “sent a letter through the American Civil Liberties Union threatening legal action.”  The hospital denied the request, reports the Post, because “Catholic mandates forbid procedures that cause sterilization … and officials said she did not qualify for an exception.”  

 

Fellow law professor Robin Wilson of Illinois is quoted as saying that “[f]ederal law provides an ‘iron-clad’ exemption for medical providers who do not want to provide abortion or sterilization services.”  Professor Wilson is further quoted as articulating a reason for the statutory accommodation:

 

Wilson said judges must tread especially carefully in situations such as Mann’s, which are not acute emergencies.

 

“If it’s not an emergency, why should you wash out the religious character of that hospital?” she said. “You want a diversity of providers so people who have different values can actually find providers who match those values.”

 

The post reports that ACLU officials “argue that the federal protections cited by Wilson do not apply in the Mann case.”  The grounds for the ACLU’s argument are not entirely clear from the Post’s coverage.

  

JRB

September 15, 2015 in Current Affairs | Permalink | Comments (0)

Monday, September 14, 2015

Scientology Accountant Calls for Removal of Key Leader

The Tampa Bay Times is running a story that may interest those familiar with the legal battles involving the Church of Scientology.  According to the story, certified public accountant and former church attorney James J. Jackson, still a Scientology adherent, is seeking to remove David Miscavige from his position as Chair of the governing board of the Religious Technology Center (“RTC”).  The RTC reportedly owns the intellectual property rights in Scientology's practices.  The article is interesting on multiple counts, including its discussion of Jackson’s representation of leading scientologists and its description of the reorganization that the church undertook in the 1980s and the institutional culture that developed after the death of founder L. Ron Hubbard.  As to the attempted ouster of Miscavige, the Times states as follows:

 

Like many critics, Jackson sees the church's leader as a dictator steering Scientology toward ruin. Allegations over the years that Miscavige mentally and physically abused church staffers continue to yield public scorn, even though repeatedly denied by the church. While other detractors have tried to pressure Miscavige in civil court and on the Internet, Jackson is pursuing a novel, perhaps quixotic strategy: He believes Miscavige can be toppled by insiders.

 

After studying corporate bylaws the church presented to the IRS to gain tax exempt status and hiring three non-Scientology lawyers who specialize in matters regarding religious organizations, he argues Scientology's nearly three dozen trustees, directors and officers have the power — whether they know it or not — to exercise oversight over the lucrative corporate enterprise.

 

They have a legal right and responsibility to investigate, or even remove, Miscavige, Jackson says.

 

But can they do their job? Or is Miscavige running everything, as defectors have alleged?

 

"Fights over control of the board, failing to follow bylaws, all this is proper subject matter for a California court," said Mark Cohen of Fremont, Calif., one of Jackson's lawyers.

 

The Times further reports that Jackson has appeared in a video in which he calls upon the two trustees of RTC (besides Miscavige) to remove Miscavige from office.  The piece also links to various items of correspondence relevant to the controversy.

 

 

JRB

September 14, 2015 in Current Affairs | Permalink | Comments (0)

Wednesday, September 9, 2015

Zelinsky: John Oliver, Televangelists, And The IRS

In addition to our previous post on fellow blogger Lloyd Hitoshi Mayer's opinion piece regarding John Oliver's segment on the tax exemption of churches, Edward Zelinsky (Cardozo) posted to the Oxford University Press Blog, John Oliver, Televangelists, and the Internal Revenue Service:

John Oliver’s sardonic spoof of televangelists raises important issues that deserve more than comic treatment. Oliver’s satire was aimed both at the televangelists themselves and at the IRS. In Oliver’s narrative, the IRS acquiesces to televangelists’ abuse by granting their churches tax-exempt status and failing to audit these churches. The law defines the term “church” vaguely. The IRS’s allegedly lackadaisical approach, Oliver tells us, permits televangelical preachers to live luxurious lives replete with private planes and tax-free cash, financed by naive and exploited believers.

An initial problem with this critique is that the IRS does not write the Internal Revenue Code. Congress writes the Code, and the American people elect Congress. As Peter Reilly of Forbes observes, in section 7611 of the Internal Revenue Code, Congress constrained the IRS’s ability to audit churches. Oliver criticizes the resulting low audit rate of churches without explaining who is responsible for this low audit rate—namely, Congress.

There are competing interpretations of section 7611. This provision of the Internal Revenue Code might be viewed as a plausible effort to minimize church-state entanglement by constraining the IRS’s ability to audit churches. Alternatively, Code section 7611 might be understood as Congress bending to political pressures from churches. Both narratives might contain part of the truth.

In any event, the low audit rate of churches, which Oliver blames on the IRS, is the responsibility of Congress. For better or worse, Congress has made it more difficult for the IRS to audit churches than to audit other persons and institutions in Code section 7611.

Another bête noire of Oliver’s critique is the private planes used by some televangelists. However, a minister’s personal use of a church-owned plane is taxable income to him, just as a corporate executive’s personal use of a company plane is taxable income to him.

More generally, churches pay more taxes than many people believe (including, apparently, John Oliver). For example, ministers pay self-employment taxes while churches pay FICA taxes on the salaries of their nonclerical employees. In many states, churches are subject to the sales tax, either as buyers or sellers and sometimes in both capacities.

Churches do not pay federal and state income taxes on their basic operations. However, neither do other nonprofit organizations such as colleges, universities, hospitals, and private foundations. It would be interesting for Oliver to compare the lifestyles of the individuals who lead these tax-exempt institutions with the life-styles of the church leaders of whom Oliver is so critical.

Interestingly, one phenomenon which troubles Oliver—small donors sending cash contributions to televangelical churches—is not problematic from a tax perspective. Oliver obviously disapproves of these donors and their responsiveness to televangelists’ appeals. However, small donors’ contributions are typically not tax deductible. Contributions to churches and other charitable institutions are deductible by the taxpayer only if the taxpayer itemizes personal deductions on his Form 1040. This occurs only among more affluent donors whose deductible outlays exceed their standard deduction for income tax purposes.

For 2015, a single taxpayer’s standard deduction is $6,300, while the standard deduction for a married couple filing jointly is $12,600. Thus, the modest donations cited by Oliver, while large relative to the donors’ low incomes, are generally not tax deductible because donors with limited incomes typically do not contribute enough to itemize their deductions. The real beneficiaries of the Internal Revenue Code’s charitable deduction are upper-middle class and wealthy taxpayers. These affluent taxpayers typically do not contribute to churches, but to such secular entities as universities and museums.

 Finally, the legal issue of defining a church involves serious trade-offs that Oliver does not explore. Again, Congress, not the IRS, writes the tax law. Congress could, through the Internal Revenue Code, define “church” more restrictively to crack down on the kind of arrangements Oliver satirizes. However, a narrower definition of a “church” could also be used against nonconformist and unconventional religions—which, at times in our country’s history, would have included abolitionist churches, the Catholic Church, the Church of Latter Day Saints, and other now mainstream organizations. For that reason, as a society, we generally seek to minimize church-state entanglement, even though the resulting zone of religious autonomy can be exploited by the kind of ministers Oliver skewers.

Since at least Sinclair Lewis’s Elmer Gantry, evangelical preachers have been subject to the kind of criticism Oliver advances. The IRS, particularly in its handling of exempt organizations, is in many ways a troubled and poorly-managed agency. If we categorize Oliver’s skit as mere entertainment, it was, well, entertaining. However, Oliver evidently seeks to place himself in another tradition of American life, the tradition of Mark Twain, Ambrose Bierce, Will Rogers, and Mort Sahl. These humorists participated in important political discussions through their comedic commentary.

By the demanding standards of this tradition, Oliver’s satire of televangelists falls short.

[Hat tip:  TaxProf Blog

Nicholas Mirkay

September 9, 2015 in Current Affairs, In the News | Permalink | Comments (0)

Friday, September 4, 2015

Mayer on Churches and Taxes

Fellow blogger Lloyd Hitoshi Mayer, Professor of Law at the University of Notre Dame School of Law, has posted an interesting, brief opinion piece, What John Oliver Got Wrong (and Right) About Churches and Taxes, on America: The National Catholic Review.  He begins with the following:

 

One of the reasons I like “Last Week Tonight with John Oliver” is that it usually gets its law right. I was therefore looking forward to its piece on churches, especially since I had talked on background with Oliver’s staff and so knew it was coming. The piece was as funny as I expected, but unfortunately it also struck a few false legal notes that are worth clarifying.

 

Mayer critiques various aspects of the popular HBO show’s segment on churches, including its failure “to mention the long history of tax benefits for churches of all faiths,” but focuses on Oliver’s never having answered the question of why tax laws treat certain televangelists (the apparent object of Oliver’s scrutiny) “the same as other churches.”  Says Mayer:

 

The answer is simple and yet is never mentioned in his piece—the Constitution’s Establishment Clause.

 

The First Amendment states “Congress shall make no law respecting an establishment of religion . . . .” This means neither Congress nor the IRS can choose among theologies.  That is why the IRS has no choice but to recognize as religious any group that sincerely holds its beliefs and does not engage in illegal activities. Oliver sharply criticizes this standard, but what is the alternative? Do we want Congress or, horrors, IRS agents picking and choosing which theologies are “correct” and which are not? ….

 

This sincerely held belief standard is also not meaningless. With all due respect to Oliver’s attorney, his newly founded “church”—Our Lady of Perpetual Exemption—almost certainly would not survive IRS scrutiny. No one watching the piece could believe that there is a sincere religious belief at its heart, much less at the heart of its purported congregation of audience members. The IRS will probably leave it alone because ultimately any donations it receives will go to a bona fide charity (Doctors Without Borders).

 

Mayer concludes with the following words:

 

None of this is to defend the “prosperity Gospel” or the excesses of the televangelists that Oliver criticizes. But the government cannot and should not choose among theologies or treat churches differently because their members sincerely hold beliefs that are out of the mainstream or even ridiculous in the eyes of many. It is instead up to you and me and, yes, John Oliver to his credit, to bring the beliefs and practices of these ministries into the light so the harm they cause can be clearly seen by those who otherwise might be lured into giving to them.

 

JRB

September 4, 2015 in Church and State, Current Affairs | Permalink | Comments (0)

Thursday, September 3, 2015

Further Hospital Consolidation in Wake of ACA?

The Boston Globe reports that “Beth Israel Deaconess Medical Center and Lahey Health are negotiating a possible merger that would create a large health system to compete with the dominant Partners HealthCare.”  The article describes Beth Israel Deaconess as “a large academic medical center affiliated with Harvard Medical School that has built its network by acquiring hospitals in Milton, Needham, and Plymouth,” and Lahey Health as a hospital system including “Lahey Hospital and Medical Center in Burlington, a teaching hospital affiliated with Tufts University School of Medicine … and community hospitals in Beverly, Gloucester, and Winchester.”

 

Legal considerations bear upon both the impetus for hospital consolidations and their consummation.  The article explains as follows:

 

Hospital mergers in Massachusetts are reviewed by the Health Policy Commission, a state agency, which cannot block deals but can refer them to the attorney general.

 

The rekindling of merger talks shows the urgency both sides feel to grow to compete with Partners, the state’s biggest and richest health system. And in today’s shifting health care industry, many executives say a larger network of hospitals, doctors, and services is needed to successfully compete.

 

Hospital consolidation has accelerated around the country in recent years, spurred in part by the federal Affordable Care Act.

 

The law encourages providers to adopt new payment systems that reward them for keeping patients healthy, rather than rewarding doctors and hospitals for every patient visit, service, and procedure.

 

The article notes that the merger talks are in the “early stages” and that on two previous occasions Lahey and Beth Israel Deaconess attempted but failed to negotiate a merger to completion.

  

JRB

September 3, 2015 in Current Affairs | Permalink | Comments (0)

Tuesday, September 1, 2015

Does Equal Protection Require Accommodation of Moral Conviction to Same Degree as Religious Belief?

In Anti-abortion Group Wins Case Against Obama, USA Today reports that United States District Court Judge Richard Leon of the District of Columbia has ruled that the “anti-abortion group March for Life does not have to offer insurance coverage for contraceptives under President Obama's health care law, marking the first time an exemption was granted for moral, rather than religious, reasons.”  Although the Affordable Care Act generally requires employers to offer employees health insurance plans that include coverage for contraceptives, churches are exempted from the requirement, and other religiously oriented nonprofits have gradually obtained a similar accommodation (which some continue to litigate as insufficiently protective of their religious convictions). 

 

The story reports why Judge Leon’s ruling is significant:

Leon ruled that the Obama administration, through the Department of Health and Human Services, already is going further than protecting religious beliefs through its exemptions. Rather, he said, it is "protecting a moral philosophy about the sanctity of human life" — a philosophy shared by many non-religious groups, particularly one "founded exclusively on pro-life principles."

 

"March for Life has been excised from the fold because it is not 'religious,'" Leon wrote. "This is nothing short of regulatory favoritism."

 

This decision is sure to spark a fire of commentary and additional analysis.  Readers can expect more blog coverage of this fascinating legal development.

 

 

JRB

September 1, 2015 in Church and State, Current Affairs | Permalink | Comments (0)

Blue Shield Executive Pay Hike under Microscope

The Los Angeles Times reports that, according to an audit by the California Franchise Tax Board, Blue Shield of California, a large nonprofit insurer, increased executive compensation in 2012 by $24 million.  The pay raise, says the story, is a 64% increase over the prior year’s level, and places Blue Shield’s compensation of approximately 60 senior company officers at $61 million for 2012 (compared to $37 million for 2011 and $39 million for 2010 and 2009).

 

The company did not report a number of details about precisely who received what and in what form, a decision that has led to speculation and criticism. The story explains as follows:

 

The health insurance giant won't say who got the money or why. But Blue Shield's former public policy director, Michael Johnson, who left this year and is now a company critic, said senior officials at the insurer told him that former Chief Executive Bruce Bodaken received about $20 million as part of his 2012 retirement package, on top of his annual pay.

Half a dozen other top executives also left the company near the end of 2012, which could have accounted for some of the spike in compensation. Some of this severance or retirement money may be paid out over time, extending beyond 2012.

The San Francisco insurer declined to confirm the total compensation for Bodaken, who was chairman and CEO from 2000 to 2012.

 

Why are the details of compensation still a mystery?  According to the Times story, California law requires Blue Shield to file a report of compensation for its 10 most highly compensated employees.  The company reportedly interprets the law to apply only to executives within the company’s employ at the time of filing the required report.  Although the company insists that it has fully complied with the law, the state insurance commission appears to be concerned:

 

California Insurance Commissioner Dave Jones said the company's decision to exclude pay for Bodaken and other executives from its regulatory filing "raises very serious and troubling questions with regard to whether Blue Shield misled the Department of Insurance."

"We will be investigating this discovery by the L.A. Times and looking at all of our options," Jones said.

 

JRB

September 1, 2015 in Current Affairs | Permalink | Comments (0)

A Hard Look at One Telemarketing Fundraiser

In Telemarketers Keep Dollars Raised for Charity, the Chicago Tribune examines the charitable fundraising operations of telemarketer Safety Publications Inc. (“Safety”).  The main criticisms raised in the piece are summarized in the following excerpt:

 

Safety gave the nonprofits only about 15 cents of every dollar raised in those seven years [i.e., 2008-2014] and kept the rest for itself, a Tribune analysis of government records found. Many of those charities in turn spent their nickels on administrative overhead, leaving pennies for those in need, the records show.

 

Safety and a linked charity telemarketer also have employed at least 10 callers who served prison terms for bank robbery, forgery, child rape and other felonies since 2007, the Tribune found, despite Illinois' prohibition against using felons to raise charity money. The law is designed to ensure the trustworthiness of nonprofit solicitors.

 

For those interested in more details, the article delves into the history of the telemarketer and its founders, reports on their alleged hiring of convicted felons, and raises questions about whether Safety has properly reported its operations to the State of Illinois.  More generally, the story offers a glimpse into the practices of professional telemarketers who contract with charities having trouble raising funds by themselves.  One is left with a picture that is far from flattering.   

 

JRB

September 1, 2015 in Current Affairs | Permalink | Comments (0)

Monday, August 31, 2015

Church Takes Leading Role in Children’s Health Care Initiatives

As reported in the Pittsburgh Post-Gazette, Fox Chapel Presbyterian Church of Pittsburgh has a history of facilitating public policy initiatives centered on improving children’s health.  It all reportedly began in the midst of the 1980s downturn in the steel industry:

 

When [a group of former steelworkers] … showed up at the Fox Chapel Presbyterian Church in the spring of 1984, the Rev. John Galloway stopped the service and invited them to address the congregation. Their stories that day were followed by emotional meetings with church and community leaders in which they described life without medical benefits for their children, according to church records.

 

Charlie LaVallee, longtime executive director of the Highmark Caring Foundation and former Highmark Blue Cross Blue Shield vice president, called Fox Chapel Presbyterian the “catalyst” for the program he helped develop into state law that later served as the model for the federal Children’s Health Insurance Program.

 

Today, reports the Post-Gazette, the church is donating space to the Pediatric Palliative Care Coalition, formed in 2012 to assist those caring for children with life-threatening illnesses, a group of patients typically underserved by existing entities, including hospices.  Partnering with the coalition seems a natural fit for the church, which is reported to have raised $50,000 in the early 2000s, “much of it going to help palliative care at Children’s Hospital of Pittsburgh of UPMC.”  The story explains that the coalition, which includes several regional hospitals, “is currently advocating for two bills in the General Assembly involving pediatric palliative care,” and focuses on “connecting families and medical providers” and “helping educate hospices about a provision in the Affordable Care Act that requires state Medicaid programs to cover both life-sustaining treatment and hospice for qualified children under 21.”

 

The activities of Fox Chapel Presbyterian Church serve as a helpful reminder of how nonprofits in general, and religious nonprofits in particular, serve a vital role in both the delivery of social services in this country and the shaping of the nation’s public policy.  The story reports how the church listened to the voices of a segment of the population facing great needs that were not being met by either government or the nonprofit sector.  The church has raised money to help meet these needs.  The church has also donated physical space to aid the effort.  And the church, by helping raise public awareness of a problem, has even contributed in some ways to the enactment of law and legislative proposals that have garnered broad support.

 

More broadly, Fox Chapel Presbyterian Church is yet another example in our country’s rich history of nonprofits, including churches, which take seriously their mission and their duty to advance their mission by exercising their rights to participate in the intersection of the private and public spheres. What this church is doing to help promote children’s health would likely garner the applause of most of us.  Other efforts – such as promoting the health, and even the very lives, of children who have not yet made it out of their mothers’ bodies – would elicit a more varied response among the general population.  But this is the nature of a pluralistic universe of actors in a civil society that includes nonprofit entities in all of their varied stripes.  Let us not forget that, when we embrace, even support, the efforts of a nonprofit such as Fox Chapel Presbyterian Church, we are recognizing the right of every nonprofit to act similarly to advance its mission.

 

JRB

August 31, 2015 in Current Affairs | Permalink | Comments (0)

Wednesday, August 19, 2015

Fleischer on Mandatory College Endowments in the NYT

Professor Victor Fleischer from the University of San Diego has an opinion piece in today's New York Times advocating an 8% annual required payout for university endowments over $100 million.   Such a payout is more than the 5% amount required for private foundations under Section 4941, and well more than the payouts for medical research organizations and private operating foundations.  In fact, it is more than the amount set as a rebuttable presumption of unreasonableness for endowment spending under Section 4(d) of UPMIFA, which is 7%.

Fleischer's concern was prompted by his research into investment manager compensation, which indicated that that private equity fund managers received more in payouts than students at at least five universities: Harvard, Yale, Texas, Stanford and Princeton.   Much of this compensation was in the form of the dreaded carried interest, which is under scrutiny in numerous arenas, not just the nonprofit world.

It is an interesting proposition.   I am somewhat dubious of an 8% payout, wondering whether that might have an adverse impact on the risk profile of endowments, which by all accounts already have fairly aggressive asset allocations (Fleischer says that endowments this size are returning over 8% already so it won't matter).   I also wonder what rationale there is for subjecting only university endowments to such a rule, as it seems to me that there may be other exempt organizations of a similar size that might have a similar investment compensation issues (large foundations, for example, only pay 5%) that are not subject to such a high payout requirement.   Finally, isn't the issue really the investment manager compensation, so mandating a payout isn't really reaching the root of the problem?  But I may be picking around the edges on this.     Would love to hear others thoughts.

EWW

 

 

August 19, 2015 in Current Affairs, In the News | Permalink | Comments (0)

Monday, July 20, 2015

First Amendment Defense Act Would Protect Tax-Exempt Organizations

As reported by The New York Times, Representative Raúl R. Labrador, Republican of Idaho, and Senator Mike Lee, Republican of Utah, along with 130 sponsors, have proposed legislation, the First Amendment Defense Act, that would confer protections for tax-exempt organizations and individuals that object to the Supreme Court's recent gay-marriage ruling on religious or moral grounds.  The Act specifically provides that the Federal government cannot take any "discriminatory action" against a person, "wholly or partially on the basis that such person believes in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage."  The Act defines a "discriminatory action" to include (i) an action by the Federal government to "alter in any way the Federal tax treatment of, or cause any tax, penalty or payment to be assessed against, or deny, delay, or revoke an exemption from taxation under Section 501(a) of the Internal Revenue Code of 1986 of, any person" referred to above, or (ii) "disallow a deduction for Federal tax purposes of any charitable contribution to or by such person."  The Act states that it should be broadly interpreted in favor of a 'broad protection of free exercise of religious beliefs and moral convictions, to the maximum extent permitted" by the Act and the U.S. Constitution.

The Times reports that a bill proposed by "moderates" would attached two pro-gay rights provisions:  (i) the Employment Non-Discrimination Act, making illegal workplace discrimination based on sexual orientation, and (ii) an amendment to the Fair Housing Act to include protections on the basis of sexual orientation and gender identity.

The Act, if passed in its present form, would ostensibly address the concerns of churches and other religiously-affiliated organizations that their tax-exempt status could be revoked for discrimination in membership or employment or otherwise on the basis of sexual orientation, even if such organizations' actions are based on their core religious tenets.  (See prior blog post here discussing these concerns).

Nicholas Mirkay

July 20, 2015 in Current Affairs, Federal – Legislative | Permalink | Comments (0)

Monday, July 6, 2015

They are Coming for Your Tax-Exempt Status ... or Not.

In the wake of Obergefell, the Internet was a dangerous place to be as a tax lawyer.   Oh, a nickel for all the posts that lamented the loss of tax-exempt status for churches that didn't perform same sex marriages forthwith!  Of course, I was sure to correct them all right away, because you know, nothing on the internet can be wrong, right?

There's been a lot of coverage by the news media on this issue as we've had some more time to discuss the issues, as discussed previously here at the Nonprofit Tax Prof Blog.   Here's the latest in the coverage from the Baltimore Sun, which discusses the tax exempt status of religiously-affiliated universities.   The article hedges on the issue of tax-exempt status, but I think both sides of the tax argument can find some common ground in the discussion found there.  Under a Bob Jones University analysis, I'm not sure that we are there yet - there being that discrimination on the basis of sexual orientation is so fundamentally against public policy as to cause loss of tax-exempt status.  While Obergefell certain makes it a stronger case,  I think we will need to see more from the other branches of government before we get to that level.  That being said, I agree with the Sun article in the thought that even if we aren't there now, I think we may be within my lifetime.

I do think that it is important to point out that Bob Jones University specifically talked about racial discrimination in education as being the fundamental public policy at issue and that the case involved the tax-exempt status of a university, not a church.    Note that this article only talks about colleges and universities - the question of the tax-exempt status of churches is much more complicated.   I don't believe there there is a case that we know of that where a church lost its tax-exempt status on the basis of religious discrimination.   Can any of my Tax Prof or Nonprofit Prof Blog colleagues think of any example?

 

EWW

July 6, 2015 in Current Affairs, Federal – Executive, Federal – Judicial, In the News | Permalink | Comments (0)

Thursday, June 25, 2015

How the Same-Sex Marriage Case Could Affect Religious Nonprofits

The New York Times has published a piece exploring how nonprofits could be affected by the pending Supreme Court decision in Obergefell v. Hodges, which raises the issue of whether the United States Constitution establishes a right to enter into a gay marriage.  The gist of the article is that private religious schools across the nation impose codes of sexual conduct, including prohibitions of same-sex relationships, and these schools fear that their policies could risk the loss of their federal income tax exemption.  Why?  If the Court recognizes a constitutional right to enter into gay marriage, the Internal Revenue Service could find school policies on sexual conduct to violate fundamental public policy under Bob Jones University v. United States

Although many legal scholars seem to doubt that schools would face this risk in the near term, the schools do have cause for concern.  As I have written and illustrated previously in two law review articles, the public policy doctrine is poorly defined and easily manipulated.  Further, the NYT article observes that, during oral argument in Obergefell, Justice Alito posed the question of how the decision would affect the tax exemption of private religious schools to Solicitor General Donald B. Verrilli Jr.  In an exchange that we previously covered on this blog, Mr. Verrilli admitted at oral argument that the exemption question “is going to be an issue.”

 

JRB

June 25, 2015 in Current Affairs | Permalink | Comments (0)

Monday, June 22, 2015

Recent Articles on the Affordable Care Act

The Affordable Care Act (“ACA”) is in the forefront of newspaper coverage these days, with the United States Supreme Court set to decide in King v. Burwell whether enrollees in federal exchanges in states that have not established their own exchanges have subsidized insurance under the ACA.  The ACA directly and indirectly impacts a significant portion of the nonprofit sector, both its service providers (i.e., nonprofit hospitals and other health care providers) and its service recipients (i.e., health care consumers).  Several articles may interest readers.  One is an article published by the St. Louis Post-Dispatch, which discusses the consolidation of the health care industry (and its likely effect on pricing) wrought by the ACA.  Another article, this one from the Los Angeles Times, maps out the various legal arguments (e.g., textualism, administrative agency deference, and protection of states’ rights) that could sway Supreme Court justices as they decide the Burwell case.  Perhaps most interesting of all is a piece by Emily Bazelon, who, writing for the New York Times, takes a somewhat scholarly look at the role of empiricism and consequentialism in judicial decisions, and speculates how they might affect Burwell and other cases currently before the Supreme Court.

 

JRB

June 22, 2015 in Current Affairs | Permalink | Comments (0)

Wednesday, June 10, 2015

It’s a Trust! It’s a Corporation! It’s Sweet Briar College! (Part I)

One of my least favorite days in Nonprofits class is the day that we discuss the difference between trust and corporate fiduciary duties (Sibley Hospital, anyone?).  Lest one think that the distinction is purely academic, along comes the sad case of Sweet Briar College to reaffirm that this area of law remains completely and utterly confusing.

If you’ve not been following the story, Sweet Briar College’s operating entity is a “non-profit corporation” (Complaint, Para. 6) which was created by the Virginia General Assembly “to administer the trust created by the will” of its primary funder, Indiana Fletcher Williams.  The Complaint also asserts that SBC is a charitable organization under the Virginia Charitable Solicitation laws and is a “trustee” under Virginia’s version of the Uniform Trust Code.   (So I’m confused already….)

According to the Complaint, the provisions of Mr. Williams’ will place his residuary estate in a trust.  The trustees of that trust were instructed to create a corporation to run a women’s college in perpetuity.   It would appear that in 1901 in Virginia, a nonprofit corporate charter could only be obtained by act of the General Assembly, and so it was.   (Complaint, p. 17).   The corporate charter incorporated the terms and conditions of Mr. Williams’ will, which required the assets to be held in perpetuity for the women’s college and directed that the assets not be sold.

Fast forward to March, 2015, when the current Board of Directors of the college announced that it would close the doors of the college, and liquidate its assets, including its endowment (Complaint, p. 26)  due to the college’s poor financial condition.   Litigation, of course, ensued.

The Complaint alleges violations of the Uniform Trust Code, which it asserts is applicable not only the original funding of the College occurred through the trust under Mr. Williams’ will, but also because “the Act of the Assembly creating the College requires that the College be administered in the manner of an express or charitable trust” (Complaint, p. 55).  It then states, “Because the College is a charitable corporation, the assets held by Defendants are deemed to be held in trust for the public.” (Complaint, p. 56).  Among other things, the original Complaint requested a temporary restraining order and a preliminary injunction restraining actions in furtherance of closing the school.

So the question then becomes, Sweet Briar College a trust?  Is it a corporation?  Does it matter? Should it?  

More on this Nonprofit Law Prof Blog Cliffhanger next time….

EWW

June 10, 2015 in Current Affairs, In the News, State – Judicial | Permalink | Comments (0)

Tuesday, May 26, 2015

Return on Portfolios: A Concern for Donors Today?

        I have blogged often about the rise of a donor base that demands results from the nonprofits. My theory is that an efficient charitable market, where investment ends up in the hands of those charities that will put it to its most productive use, is crucial. Of course that necessitates reform to our US cross-border giving laws so that donors truly may have the ability to weigh the social impact (or return) associated with US versus non-US charities before deciding where to give. This was the subject of two parts of a three part series I have written. An efficient charitable market also requires the charitable sector to learn from the impact investing sector in terms of measuring and reporting social impact, which is the topic of my forthcoming final article in the series.

        CNBC dealt with the donor dilemma of where to give effectively earlier this month. It announced that well-known think tank in the nonprofit arena, Milken Institute, has developed the Center for Strategic Philanthropy (CSP), which is designed to help donors make better giving choices. The main arm of the CSP is the Philanthropy Advisory Service. As Executive Director of the CSP, Melissa Stevens, commented, donors "are spending so much more time on their philanthropy because they want to do it well." The need for providing donors with concrete information about return on their investments is no secret to other competitors in the space such as Rockefeller Philanthropy Advisors, Pembroke and the Giving Pledge. With over $250 billion being given annually in the US, there is plenty of room for advising according to area of expertise. The CSP has already laid claim to the medical research area. According to Stevens, donors are focusing on “maximizing the social return on their philanthropic portfolios,” a phrase which necessitates the development of an efficient charitable market. 

Khrista Johnson

May 26, 2015 in Current Affairs, In the News | Permalink | Comments (0) | TrackBack (0)

Monday, May 25, 2015

CA Donor Lists are a Do according to Justice Kennedy

        Earlier this month, we covered the 9th Circuit decision that denied the Center for Competitive Politics (CCP) an injunction that would have restricted California Attorney General Kamala Harris from requiring a list of donors who had contributed more than $5,000 in a year. See Lloyd Mayer's post.

        Under current California law, nonprofit groups seeking donations from California are required to disclose donor names to the AG and to the IRS. The CCP and America for Prosperity have refused to surrender these lists asserting that their donors would be harassed. Harris has indicated that the lists would be kept confidential and used only for investigatory purposes.

        As an update, the Supreme Court has denied an emergency appeal from the CCP. The CCP filed the appeal with Justice Kennedy, who denied it without prejudice. David Keating, President of the CCP, has stated that the center will continue injunction efforts in the event Harris attempts to collect donor information. Interesting, Justice Kennedy is a proponent of free speech and free spending in terms of politics, two aims the CCP promotes; however, he is also in favor of disclosure laws. This case raises important First Amendment questions for the sector.  See LA Times.

Khrista Johnson

May 25, 2015 in Current Affairs, Federal – Judicial, In the News | Permalink | Comments (0) | TrackBack (0)

Thursday, May 7, 2015

Carneigie Corporation Awards $3.6 Million to New York Institutions

New York City seems to be in the news a lot this week.  In a press release issued yesterday, the Carnegie Corporation of New York announced grants totaling $3.6 million in support of education and enrichment programs in the greater New York City region.

The awards form part of the foundation's 2015 Presidential Discretionary Grants program.  Pursuant to that program, eighteen museums, libraries, and performing arts and science centers received grants of $200,000 each for existing programs aimed at K-12 students.  Grant recipients include the American Museum of Natural History; the Asia Society; the Brooklyn Academy of Music; Carnegie Hall; Cooper Hewitt, Smithsonian Design Museum; Liberty Science Center; Lincoln Center for the Performing Arts; the Metropolitan Museum of Art; the Morgan Library & Museum; the Museum of Modern Art; the National September 11 Memorial & Museum; New Jersey Performing Arts Center; the New York Botanical Garden; the New York-Historical Society; the New York, Brooklyn, and Queens public libraries; and Studio in a School

Commenting on the awards, Carnegie president, Vartan Gregorian, said:

New York City, one of the cultural capitals on the United States, has the largest public school system in the nation.  Carnegie Corporation is proud to support the City's cultural institutions in order to enhance the curriculum of our public as well as private and parochial schools with the riches these museums, libraries, and centers possess.  It speaks well of these organizations' leaders that they have developed education programs to help students overcome deficiencies in the arts and sciences that our schools can't provide due to financial factors.   

VEJ

May 7, 2015 in Current Affairs, In the News, Other | Permalink | Comments (0) | TrackBack (0)

PND: Rockefeller Foundation Working to Build "Resilience" in Africa

Today's Philanthropy News Digest is reporting that as Africa "struggles to address the effects of climate change and an unprecedented youth bulge, the Rockefeller Foundation is working across multiple fronts to build the resilience of African economies."

Attributing the report to the Voice of America, the Digest reports that current efforts includes the $100 million Digital Jobs Africa initiative, which was launched in 2013 with the aim of boosting the information and communications technology (ICT) sector in six African countries -- Ghana, Kenya, South Africa, Nigeria, Morocco, and Egypt.  Foundation president, Judith Rodin, told the VOA:

We are excited to see so much opportunity and such a growth market in the ICT sector more broadly across the continent.  [There are] so many technology parks growing [and] so many companies really growing on technology-based platforms.  We know that ... the continent has to focus on employing this extraordinary youth bulge that we are going to see.  We think ... a critical part of shared prosperity as we go forward [means] developing growth in the ICT sector which often yields some of the better paying jobs.       

Elsewhere on the continent, the foundation is working to help small farmers adapt to climate change by collaborating with local partners to capture run-off from flooding for use in irrigating fields.  It is also working in partnership with the World Food Programme and has bankrolled a technology called risk metrics that can help predict an impending drought.  As a final matter, the foundation is also -- again in conjunction with the World Food Programme -- creating a country-level insurance mechanism that enables countries to access resources in the immediate aftermath of a natural disaster rather than having to wait for international development assistance to arrive.    

VEJ

May 7, 2015 in Current Affairs, In the News, International | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 6, 2015

Chelsea Clinton Defends Foundation Before Global Initiative Meeting

The Washington Post is reporting that just as business, political, and philanthropic leaders gathered in Marrakesh, Morocco, for the first Clinton Global Initiative meeting on Africa and the Middle East, Chelsea Clinton, the former President's daughter, said there is a "political dimension" to the controversy over multimillion-dollar gifts from foreign governments and corporations to her family's foundation.    

Ms. Clinton, the Clinton Foundation's vice chair, said the scrutiny has intensified with the launch of her mother Hillary Clinton's White House run.  She dismissed the idea, raised by some Republicans and campaign watchdog groups, that foundation donors seek to curry favor with her powerful parents. 

VEJ

May 6, 2015 in Conferences, Current Affairs, In the News, International | Permalink | Comments (0) | TrackBack (0)