Thursday, May 3, 2018

N.Y. Times Magazine: "How Liberty University Built a Billion-Dollar Empire Online"

Liberty UniversityWhile much public and governmental attention has been paid to colleges and universities with growing endowments (and increasing tuition costs) and to for-profit schools,  another important trend that has received less attention recently is the expansion into online education by nonprofit institutions. Perhaps surprisingly, the biggest player in this area is Liberty University, which has more online students than any other nonprofit at up to 95,000 students annually, second only to the for-profit University of Phoenix. Its online activities are the focus of a detailed N.Y. Times Magazine article. The article is too lengthy to summarize completely here, but suffice to say it raises questions about student recruiting methods, admissions standards, and the quality of the online education provided, among other issues. For the response of the University's President, Jerry Falwell Jr., to these and other points from the story, see this Townhall Opinion piece.

Lloyd Mayer

May 3, 2018 in In the News | Permalink | Comments (0)

Nathan Cummings Foundation All-In on Impact Investing

NCFThe Nathan Cummings Foundation recently announced that it will move 100 percent of its nearly half-billion dollar endowment into investments that align with its stated mission, which is:

The Nathan Cummings Foundation is rooted in the Jewish tradition and committed to democratic values and social justice, including fairness, diversity, and community. We seek to build a socially and economically just society that values nature and protects the ecological balance for future generations; promotes humane health care; and fosters arts and culture that enriches communities.

The Foundation's approach to grantmaking embodies some basic themes in all of its programs:

  • concern for the poor, disadvantaged, and underserved;
  • respect for diversity;
  • promotion of understanding across cultures;
  • and empowerment of communities in need.

This move expands upon the Foundation's previous, more limited impact investing, and shareholder activism. The Foundation plans to provide an update on this effort by the end of 2018.

Lloyd Mayer

May 3, 2018 in In the News | Permalink | Comments (0)

Big Donors Sometimes Mean Big Headaches: George Mason University, University of Chicago, and More

GMUEvery charity leader knows that big donations came come with big strings attached. But some recent disputes between donors and charities highlight how problematic those strings can become.

George Mason University, a state university, is struggling to address a controversy that has erupted over the influence that sizeable donations to its affiliated foundation by the Charles Koch Foundation and others may have given over academic decisions. According to a Washington Post report, a student group, Transparent GMU, has sued in state court seeking access to agreements between the foundation and these donors, arguing that they are covered by Virginia's open records laws. While the group filed the lawsuit over a year ago, it appears to only have received limited coverage (see, e.g., Huffington Post, Fairfax Times) before a recent court hearing.

The Charles Koch Foundation donations at issue include $10 million gift relating to the renaming of the law school for deceased Supreme Court Justice Antonin Scalia and $5 million gift to the economics department to create three new faculty positions. According to a follow-up Washington Post story, the University's president has now stated that some gift agreements "fall short of the standards of academic independence."  For example, some of the agreements included terms granting donors a right participate in faculty selection and evaluation for some economics department positions. While the lawsuit is proceeding, the University has already released some of the agreements at issue and, according to a N.Y. Times story, launched an internal inquiry. The University has also noted that those agreements, with one exception, have expired.

Additional Coverage: The Chronicle of Higher Education; Inside Higher Ed.

The University of Chicago, a private university, is facing a different but related situation. Thomas L. Pearson and twin brother Timothy R. Pearson pledged to give $100 million to the University through their family foundation to create a research institute to advance the cause of world peace. As reported by Bloomberg and student newspaper The Chicago Maroon, the foundation has now filed a lawsuit in federal court (U.S. District Court, Northern District of Oklahoma) alleging numerous breaches of the grant agreement by the University and demanding the return of the $22.9 million it has paid so far. The University is seeking to dismiss the suit, according to a Chicago Tribune report, asserting that the foundation cannot prove that it violated any of the grant agreement's terms. Additional coverage: The Chronicle of Philanthropy (subscription required); The Nonprofit Times.

While these two stories are the most prominent recent ones, there have been recent developments in two other major disputes with donors. The Legal Intelligencer (law.com) reports that last month a federal judge in Pennsylvania ruled that Foremost Industries had to fulfill its $4 million pledge to Appalachian Bible College. The College had sued to enforce its gift agreement with the company, and the court considered the College's motion for summary judgment unopposed after the company failed to file its opposition brief by the deadline set by the court. The company is now closed, which may indicate that it will be difficult for the College to collect on its judgment.

And the The Inquirer (Philadelphia) reports that the Abington School District board of directors has voted to accept a $25 million gift from billionaire Stephen Schwarzman, after rejecting an earlier gift agreement with the donor after gift stirred local controversy because of concerns about its terms and the structure of the nonprofit the board is creating to administer the donation. The controversy erupted when the board initially voted to accept the gift and its then terms, including renaming the high school for the donor, without almost no advance warning to the public and without making the gift agreement public.

Lloyd Mayer

May 3, 2018 in Federal – Judicial, In the News, State – Judicial | Permalink | Comments (0)

Will We Finally Have a Single System for State Registration & Reporting by Charities?

NASCOThe National Association of State Charity Officials (NASCO), the Multistate Registration and Filing Portal, Inc. (MRFP), GuideStar, and CityBase (a technology firm) have announced that they are moving ahead with a longstanding plan to develop a single, online portal for charities to use to satisfy the registration and reporting requirements they face in most states. The data collected will not only be available to state regulators, but also (with private information removed) to researchers, policy makers, and the public through GuideStar. CityBase and GuideStar plan to launch an initial prototype this summer, with registration for a few states, with a full launch planned for later in 2018. The hope is to eventually make the portal work for registrations in all 39 states that currently require charities and professional fundraisers to register before raising funds in those states.

Lloyd Mayer

May 3, 2018 in In the News, State – Executive | Permalink | Comments (1)

Wednesday, May 2, 2018

California: AG Rejects Requests to Reduce Hospital Charity Care Obligations, Targets Overvaluation of Pharmaceutical Donations

Ag-becerra-officialCalifornia Attorney General Xavier Becerra's office recently addressed two different types of activities relating to charities: the charity care obligations of certain California hospitals, and the valuation of pharmaceutical donations to certain charities.

The charity care issue arose when three California hospitals asked for permission to reduce their existing obligations to provide charity care under agreements entered into with the AG's office when they were participants in a merger or acquisition. The requests were based on changes in the healthcare market, particularly in light of Obamacare. Two of the hospitals are former nonprofit entities that for-profits purchased and now own. Emanuel Medical Center's $3,312,360 charity care obligation (for fiscal year 2016) arose out of a 2014 agreement with the AG relating to its purchase by Doctors Medical Center of Modesto, Inc. See its denial letter. The Mission Community Hospital's $2,424,236 charity care obligation (for fiscal year 2016) arose out of a 2010 agreement with the AG relating to its purchase by Deanco Healthcare LLC. See its denial letter. More details regarding the requests and the AG's consideration of them can be found in reports prepared for the AG's office relating to each request. See EMC Report; MCH Report.

The third hospital is the nonprofit USC Verdugo Hills Hospital, which had a $2,073,564 charity care obligation (for fiscal year 2017) arising out of a 2013 agreement with the AG relating to its purchase by a limited liability company wholly owned by the University of Southern California. See its denial letter. Its situation underlines the fact that such agreements do not only apply to acquisitions by for-profit entities. For more details, see the report prepared for the AG's office.

To make up for missing their required charity care obligations in the fiscal year listed for each of them, the AG is requiring each hospital to make donations to local nonprofits that provide health care services.

Additional coverage: California Healthline, L.A. TimesModern Healthcare.

The pharmaceutical valuation issue relates to cease and desist orders sent by the AG to three charities: Catholic Medical Mission; Food for the Poor; and MAP International. For each charity, the order alleges that the charity reported inaccurately high valuations for contributed pharmaceuticals, leading both to overstating program to administration/fundraising expense ratios in charitable solicitation materials and, for the latter two charities, inaccurate statements in their federal tax (Form 990) and California  (Form RRF-1) filings. The orders direct all three charities to stop including such ratios in their solicitations to California donors, threaten revocation of their charity registration in California, and assess hundreds of thousands of dollars in penalties. A fourth charity, the National Cancer Coalition, dissolved after the AG sought a permanent injunction based on similar issues, according to a report from The Nonprofit Times. The same report notes that the first three charities have issued statements contesting the AG's allegations.

Lloyd Mayer

May 2, 2018 in In the News, State – Executive | Permalink | Comments (0)

Missouri: Governor Charged with Misusing Donor List Belonging to Charity He Founded (UPDATED)

Mission ContinuesUPDATE: The St. Louis Post-Dispatch reports that a Missouri House committee issued a report on May 2nd relating to the donor list, including evidence that Governor Greitens had signed a confidentiality agreement with Mission Continues, that the Governor had obtained the donor list himself in May 2014, and that the settlement of an ethics complaint relating to the list contained falsehoods. And in a new development, the St. Louis Post-Dispatch also reports that Washington University in St. Louis is investigating whether Governor Greitens misused grant funds received from the University by using a portion of them to compensate a campaign aide.

The Kansas City Star reports that embattled Missouri Governor Eric Greitens has been charged with felony computer tampering, which the newspaper characterizes as "essentially electronic theft," in connection with his campaign obtaining a donor list that belonged to Mission Continues. Mission Continues is a charity founded by Greitens in 2007. Greitens initially denied reports that his campaign had used the donor list to solicit contributions, but later admitted in a consent decree that the list was given to his campaign in March 2015 by his campaign manager. Emails discovered by the St. Louis-Dispatch indicate that Greitens' former assistant had sent the list to the campaign manager and another campaign staff member two months earlier. Greitens released a statement refuting the charges. 

Here is the text of the Probable Cause Statement:

DATE: April 20, 2018

I, Anthony Box, knowing that false statements on this form are punishable by law, state that the facts contained herein are true.

1. I have probable cause to believe that Eric Greitens, a WHITE MALE DOB: 4/XX/74 Age: 44, committed one or more criminal offense(s).

Count 1 Tampering With Computer Data To Defraud Or Obtain Property (value $500 Or More) (Class D Felony) RSMO 569.095 ON 4/22/2015 Time: PLACE: City of St. Louis, MO (SCC 569.095-001Y200229)

Or, in the alternative to Count I:

Count 2 Tampering With Computer Data To Defraud Or Obtain Property (value $500 Or More) (Class D Felony) RSMO 569.095 ON 4/22/2015 Time: PLACE: City of St. Louis, MO (SCC 569.095-001Y200229)

2. The facts supporting this belief are as follows:

I learned through an investigation that the defendant, acting with others, took and used data specifically owned by the Mission Continues for the purpose of soliciting funds for his political campaign.

At the direction of the defendant, on April 22, 2015, K.T. disclosed data, specifically a donor list owned by The Mission Continues, to a political fundraiser (the “Fundraiser”) working on behalf of Greitens for Missouri. The defendant directed this disclosure. The President of The Mission Continues explained neither the defendant nor K.T. had permission from The Mission Continues to disclose the donor list to the Fundraiser or to use the donor list for political purposes. The Mission Continues employee handbook and the non-disclosure agreements prohibited the disclosure of the donor list and the retenhat tion of it by anyone not employed by and working on behalf of The Mission Continues. The Mission Continues conflict of interest agreement signed by board members prohibited the personal use of The Mission Continues assets, including the donor list.

The defendant and K.T. knew that the donor list disclosed on April 22, 2015, was taken without the permission of The Mission Continues. The defendant was aware that K.T. retained or used the list without the permission or consent of The Mission Continues and the defendant directed K.T. to send the donor list in an April 22, 2015 email to the Fundraiser.

At the time of the April 22, 2015 disclosure of the donor list, the donor list resided and existed internal to a computer or computer system used by K.T. for the purpose of conducting business on behalf of The Greitens Group and/or Greitens for Missouri, as well as a computer or computer system belonging to the Mission Continues. The defendant and K.T. disclosed the donor list to the Fundraiser for the purpose of obtaining property of five hundred dollars or more.

Additional coverage: N.Y. Times, USA TodayWashington Post.

Lloyd Mayer

May 2, 2018 in In the News, State – Executive | Permalink | Comments (0)

New York: AG Shuts Down Telemarketer, Settles Breach of Fiduciary Duties Case

Attorny_General_Eric_T_SchneidermanNew York Attorney General Eric  T. Schneiderman's Charities Bureau has been busy. Two recent activities are of particular note:

  • Charitable Solicitation: Following up on its 2016 closure of a sham veterans charity, the AG's office announced a settlement that closed the charity's telemarketing company, Menacola Marketing, Inc. In the settlement agreement, the company agreed its solicitations on behalf of the veterans charity contained "numerous material misrepresentations," that the company had ignored several "red flags" regarding the professional fundraiser who facilitated its work for the charity, and had "repeatedly made misrepresentations" in filings with the Charities Bureau. 
  • Fiduciary Duties: Completing its investigation of Yisroel Schulman, the former President and Attorney-in-Charge of the New York Legal Assistance Group, Inc. (NYLAG), the AG's office announced a settlement in which Mr. Schulman admitted violating his fiduciary duties of loyalty, care, and obedience, admitted breaching his duties under the New York version of the Uniform Prudent Management of Institutional Funds Act, agreed to a five-year ban on future service as a director or officer of a nonprofit operating in New York, and agreed to pay $150,000 to NYLAG. In the settlement agreement, Mr. Schulman admitted this his recommendation to NYLAG's Board that it transfer NYLAG's multi-million dollar reserve fund to a donor advised fund at charity FJC was "neither prudent nor consistent with [his] duty to ensure that NYLAG's assets were administered for its benefit," in large part because that transfer surrendered NYLAG's legal ownership and control over those funds. Mr. Schulman also admitted that he also violated his fiduciary duty to safeguard NYLAG's assets when he "lost track" of another account that had received NYLAG charitable funds totalling approximately $600,000. The agreement also provides extensive detail about the a variety of misrepresentations relating to these NYLAG's funds and misuse of NYLAG's funds, including for the personal benefit of Mr. Schulman.

Lloyd Mayer

May 2, 2018 in In the News, State – Executive | Permalink | Comments (0)

Monday, February 26, 2018

Webb: 99% of UK charities should lose their charitable status

image from www.ft.com

Merryn Somerset Webb penned an op-ed in The Financial Times entitled The charitable giving model is an undemocratic use of funds. Focused on the UK, the piece proposes that "99 per cent of the organisations with charitable status in the UK should have it removed." Instead, tax subsidies would apply to a limited number of official charities that would be tightly regulated. Read the entire piece at: https://www.ft.com/content/1093fcec-187a-11e8-9376-4a6390addb44 

February 26, 2018 in Current Affairs, In the News, International | Permalink | Comments (0)

Sunday, February 25, 2018

NYTimes: When Charity Workers Turn Predatory

On Friday, the New York Times Editorial Board penned an opinion piece entitled, "When Charity Workers Turn Predatory." It concludes:

the Oxfam scandal has sounded an alarm across the entire nongovernmental aid profession that it must heed if it is to retain the public trust on which it depends. There must be zero tolerance for misuse of power by staff members in the field and swift and transparent action against any appearance of abuse.

Read the entire thing (paywall) at: https://www.nytimes.com/2018/02/23/opinion/when-charity-workers-turn-predatory.html

-jwm

February 25, 2018 in Current Affairs, In the News | Permalink | Comments (0)

Friday, February 23, 2018

JCT Official Acknowledges Possible Glitch in New Excise Tax on High Compensation Paid by EOs

MoneyEllen Aprill (Loyola-LA) previously pointed out that there is an apparent glitch in the newly enacted excise tax on compensation over $1 million dollars for tax-exempt organization employees, in that new section 4960 does not appear to apply to public universities even though the public and maybe Congress thought that it would. Now Bloomberg Law reports that a Joint Committee on Taxation official has stated that a correction is needed to make it clear that public universities are within the ambit of this excise tax. More specifically, she said that the provision "requires a statutory technical correction" to resolve this issue. Whether such a correction will be forthcoming, or indeed any corrections to the recent tax reform legislation, remains to be seen.

Lloyd

February 23, 2018 in Federal – Legislative, In the News | Permalink | Comments (0)

Monday, February 19, 2018

Nonprofits, Governance, and #MeToo

MeTooThe #MeToo movement has reached several major nonprofit organizations, raising serious accountability and governance questions. For example:

  • According to NPR, the General Counsel and Chief International Officer of the American Red Cross resigned in the wake of a report from ProPublica that several years ago ARC had forced a senior official to resign amid sexual harassment and assault allegations but still provided a positive review of his performance to another nonprofit interested in hiring him. 
  • Doctors Without Borders (Medecins Sans Frontieres) announced that in 2017 it had dealt with 24 cases of alleged sexual harassment, resulting in the dismissal of 19 people, in an attempt to distinguish itself from the Oxfam and the scandal enveloping that organization (see below), according to Reuters.
  • The CEO of the Humane Society of the United States resigned in the wake of sexual harassment allegations, after fighting the allegations for weeks and even though a majority of the organization's board voted to immediately end an investigation into his behavior, according to the N.Y. Times. Additional coverage: NPR.
  • The Times of London reported that in 2011 Oxfam International covered up the use of prostitutes by senior aid workers in Haiti. Trying to get ahead of the growing scandal, Oxfam has promised to appoint an independent commission to investigate claims of sexual exploitation, according to The Guardian
  • The Presidents Club, a prominent United Kingdom charity that raised money from the British elite to fund grants to other charitable organizations, closed after The Guardian conducted an undercover investigation that revealed alleged groping and sexual harassment at the charity's most recent men-only fundraising dinner. Additional coverage: CNN.

In a Monkey Cage column in today's Washington Post, Nives Dolsak, Sirindah (Christianna) Parr, and Aseem Prakash, all at the University of Washington at Seattle, argue the presumption of virtue for nonprofits often leads to regulators and stakeholders neglecting issues of accountability and governance. (UPDATE: For a contrary perspective, see this Nonprofit Quarterly column by Ruth McCambridge and Steve Dubb.)  At the same time, even the above examples illustrate everything from an apparently robust response to allegations of sexual harassment in the case of Doctors Without Borders to the alleged creation of an environment that encouraged such harassment in the case of the Presidents Club. What appears inescapable, however, is that nonprofits, like for-profits, have to invest in developing procedures to properly handle such complaints and deal with alleged harassers.

Lloyd Mayer

February 19, 2018 in In the News, International | Permalink | Comments (0)

Thursday, February 15, 2018

It's In There! The Newman's Own fix in the Bipartisan Budget Act of 2018

Section 41110 of the Bipartisan Budget Act of 2018 includes the so-called Newman’s Own provision – an amendment to Code Section 4943 (the private foundation excise tax on excess business holdings) that would allow a private foundation to own a significant stake in an operating business under certain circumstances.  By all reports, the foundation that owns Newman’s Own is subject to Code Section 4943, and would need to liquidate its holdings in the company in short order without legislative changes to Code Section 4943.

As you may know, Code Section 4943 provides that a private foundation may not own an “excess” holding in a operating business.   Very generally, the excess holding for an operating business in corporate form is equity having 20% of the corporation's voting power reduced by the voting power held by “disqualified persons” – typically, substantial contributors, foundation managers, and their family and related entities under Code Section 4946.  If a foundation holds an excess business holding by gift or inheritance (e.g., Paul Newman dies and leaves all his stock to his foundation), the foundation has five years to dispose of the excess holding.  If the foundation could demonstrate that it could not dispose of the holding despite its efforts during that five year period, the Service could grant a discretionary additional five years.   

New Code Section 4943(g) would allow a private foundation to hold 100% of the voting stock of an operating business if it acquires those interests by gift, it receives the net operating income of from the business annually, and the business and the foundation are operated independently, as determined by certain board composition rules.    Presumably, this would allow Paul Newman's foundation to continue to own Newman's Own and receive the proceeds from operation.

I am not going in to the details of the actual language of the statute (yet…) –  there are some questionably drafted provisions (shocking…) that raise some issue I’m still thinking about.   No worries, I’m here all week.

That being said, I am troubled by this provision as a general matter.  First, the idea of changing statutes for specific taxpayers, no matter how well-intentioned and deserving (I love the salsa….), is always distasteful to me.   Now, I’m not so naïve that I don't know that it happens all the time (I’m looking at you, motorsports facilities and the Orange Bowl and race horses…) but it doesn’t mean it’s good practice and one that should be lauded.  

More to the substance, however, this new provision really flies in the face of the whole purpose of Code Section 4943. If you read the legislative history (which I have and have helpfully summarized for you here: (shameless plug): Better Late Than Never: Incorporating LLCs Into Section 4943)),  you find that the original intent behind Code Section 4943 was not really about prohibiting self-dealing.   After all, Code Section 4941 (the self-dealing prohibition) was passed at the same time.   Code Section 4943 is about focus: is the foundation focusing on its charitable endeavors, or it is spending a more than insubstantial amount of its time running a business?   It is, to some degree, understandable that the foundation would pay close attention to the primary source of its income.   That being said, the source of the private foundation’s exemption is its charitable program, and if that program suffers in the shadows of operation of a substantial business subsidiary, what is the point of exemption?  Do we still believe that the destination of income test is not a thing?  In my mind, none of the requirements of new Code Section 4943(g) address this concern directly.

I suspect my discomfort will grow as my estate planner hat takes over, but in the meanwhile, pass the tortilla chips.

EWW

P.S.   I know “It’s In There” was Prego – you try making a pithy headline involving tax and pasta sauce.

February 15, 2018 in Federal – Legislative, In the News | Permalink | Comments (1)

Wednesday, February 14, 2018

Fershee: The End of Responsible Growth and Governance?: The Risks Posed by Social Enterprise Enabling Statutes and the Demise of Director Primacy

Josh Fershee

My friend and colleague Josh Fershee recently posted this piece on SSRN, which is cross blogged at the Business Law Prof Blog under the screaming headline, “These Reasons Social Benefit Entities Hurt Business and Philanthropy Will Blow Your Mind!!!!!”   Okay -  I added the exclamation points.  And the bold.   Alas, there are no cat pictures or bad high school year book photos of celebrities, but there is an important discussion about impact of the existence of social enterprise entities on traditional for profit businesses engaged in social activity.     The abstract:

The emergence of social enterprise enabling statutes and the demise of director primacy run the risk of derailing large-scale socially responsible business decisions. This could have the parallel impacts of limiting business leader creativity and risk taking. In addition to reducing socially responsible business activities, this could also serve to limit economic growth. Now that many states have alternative social enterprise entity structures, there is an increased risk that traditional entities will be viewed (by both courts and directors) as pure profit vehicles, eliminating directors’ ability to make choices with the public benefit in mind, even where the public benefit is also good for business (at least in the long term). Narrowing directors’ decision making in this way limits the options for innovation, building goodwill, and maintaining an engaged workforce, all to the detriment of employees, society, and, yes, shareholders.

The potential harm from social benefit entities and eroding director primacy is not inevitable, and the challenges are not insurmountable. This essay is designed to highlight and explain these risks with the hope that identifying and explaining the risks will help courts avoid them. This essay first discusses the role and purpose of limited liability entities and explains the foundational concept of director primacy and the risks associated with eroding that norm. Next, the essay describes the emergence of social benefit entities and describes how the mere existence of such entities can serve to further erode director primacy and limit business leader discretion, leading to lost social benefit and reduced profit making. Finally, the essay makes a recommendation about how courts can help avoid these harms.

EWW

February 14, 2018 in In the News, Publications – Articles, State – Legislative | Permalink | Comments (0)

Tuesday, February 13, 2018

Exempt Organization Goodies in the Bipartisan Budget Act of 2018

I’m scrolling through the Bipartisan Budget Act of 2018 (the “BBA”)(P.L. No. 15-123 signed on February 9, 2018 – enrolled bill from Thomas.gov here) in my leisure time.   It appears that there are two provisions that directly impact exempt organizations, as follows:

  • Section 41109 of the BBA clarifies the application of the investment income excise tax for private colleges and universities. As you may recall, Section 13701 of the legislation formerly known as the Tax Cuts and Jobs Act (TCJA) added new Section 4968, which imposes an excise tax on the investment income of certain private colleges and universities.  This new excise tax only applies to private colleges and universities that have at least 500 students, more than 50% of which are located in the U.S.   The BBA clarifies that this refers to “tuition paying” students only – but of course, it didn't actually give us a statutory definition of “tuition paying.”   Full tuition? External scholarship?  Internal scholarship?  Tuition waiver?  Work study?  Have fun with the counting, university admin types.
  • Section 41110 of the BBA contains the Newman’s Own provisions by adding Code Section 4943(g) (h/t to Evelyn Brody for the CT Mirror article). These provisions were originally in the TCJA but were struck by the Senate Parliamentarian for having insufficient budget impact.   I will have more to say about Section 4943(g) in another post.

Unless I missed it (let me  know if I did!), absent from the BBA are the following: (1) the Johnson Amendment provisions that were also struck from the TCJA by the Senate Parliamentarian, and (2) the technical fix to the exempt organization excess compensation excise tax found in new Code Section 4960 that would actually make it applicable public universities - as apparently was originally intended but, as discussed by Professor Ellen Aprill, there was a significant drafting fail.  (I heard a rumor that someone from the IRS agreed at the ABA Tax meeting that the technical fix was, in fact, necessary - can anyone confirm?)   If only there were a process by which Congress could talk to experts like Ellen before it finalized draft legislation…

EWW

February 13, 2018 in Current Affairs, Federal – Legislative, In the News | Permalink | Comments (0)

Saturday, December 30, 2017

New Tax Law and Nonprofits

The end of 2017 brought significant new tax legislation. Although the Johnson Amendment remained intact, the increase in the standard deduction means that fewer people will itemize deductions, which, in turn, effectively eliminates the value of the charitable deduction for many US taxpayers. The Washington Post article "Charities fear tax bill could turn philanthropy into a pursuit only for the rich" catalogs worries by major nonprofits' leaders that donations will drop and the shift will be towards wealthier donors. On his blog, Alan Cantor warns that "An earthquake just hit the nation," and the tax changes will reduce the funds to the sector and increase the power of the wealthiest at the very time when nonprofits will face greater demands. The Wall Street Journal editorial board, however, was unimpressed, publishing a sharp critique entitled "Uncharitable Charities:"

These nonprofits want to keep millions of Americans filing more complicated tax forms and paying higher tax rates. They also sell Americans short by assuming that most donate mainly because of the tax break, rather than because they believe in a cause or want to share their blessings with others. How little they respect their donors.

How will the nonprofit sector fare in 2018?

-JWM

December 30, 2017 in Current Affairs, Federal – Legislative, In the News | Permalink | Comments (1)

Saturday, November 18, 2017

My Last (?) Post About the Section 501(c)(4) Application Controversy

Form 1024[UPDATED 11/21/17 to add NY Times report of amount paid in one settlement.] Recent months have seen a flurry of developments indicating that this controversy is finally winding down.

First, two months ago the U.S. Department of Justice announced that it would not reopen the criminal investigation of former IRS Exempt Organizations Director Lois Lerner, to howls of fury from her critics in Congress.

Then the Treasury Inspector General for Tax Administration released a new report that found a number of left-leaning organizations that had applied for section tax-exempt status had also had their applications subject to additional review and/or been subject to unnecessary questions. The report did not undermine TIGTA's previous finding that the IRS had used inappropriate criteria to identify applications for additional scrutiny, or that many right-leaning organizations had been selected as a result of that criteria, but it muddied the waters regarding how politically biased the application process actually was and provided further support for the argument that the problems with that process likely reflected incompetence more than malevolent intent. (More coverage: Washington Post.)

Late last month the U.S. Department of Justice announced the settlement of two pending lawsuits relating to the controversy, including the one class action suit. According to a report by a CNN, the settlements did not involve the payment of any monetary damages but included an apology from the IRS. The NY Times later reported, however, that one of the settlements involved a seven-figure payment, although the exact amount and other details were not available.  The two settled cases (assuming court approval of the settlement in the class action case) are NorCal Tea Party Patriots v. IRS (the class action) and Linchpins of Liberty v. United States. (More coverage: Fox News, Washington Post.)  By my count there is still a pending lawsuit brought by True the Vote against the IRS, as well as Freedom Path's lawsuit against the IRS (set for trial in summer 2018), so this settlement is not quite the end of all litigation.

Finally, earlier this month IRS Commissioner John A. Koskinen reached the end of his 5-year term. Despite calls for his removal or even impeachment because of the IRS' handling of the controversy's investigation, President Trump chose not to ask him to step down and Congress did not take any steps to begin the impeachment process. The Administration has not nominated his successor, with Assistant Secretary for Tax Policy David Kautter currently serving as interim IRS Commissioner. Coverage: N.Y. Times.

Lloyd Mayer

 

November 18, 2017 in Federal – Executive, Federal – Judicial, In the News | Permalink | Comments (1)

24 States Shut Down Deceptive Veterans Charity

VietNowOfficials from Illinois, New York, and other states announced earlier this month that approximately two dozen states have acted to dissolve VietNow National Headquarters, Inc., an Illinois nonprofit corporation. The grounds for the action against the section 501(c)(19) veterans organization was deceptive telemarketing solicitations that mislead potential donors regarding the use of donated funds, including the fact that less than five percent of such funds actually went to charitable programs. If the name looks familiar, it is because this is the organization involved in the 2003 (yes, 2003) Supreme Court of the United States case brought by Illinois against for-profit telemarketers for alleged fraud.

More specifically, the settlement agreement includes provisions requiring VietNow to dissolve and certain of its officers and directors not to ever work for or serve in a fiduciary position with any charitable organization, as well as provision for division of VietNow's few remaining assets. The agreement also notes that a total of 27 states had "expressed interest in VietNow's solicitation activities in their respective states," although only 21 states signed the agreement (and two more states entered into separate agreements with similar terms).

Lloyd Mayer

November 18, 2017 in In the News, State – Executive | Permalink | Comments (0)

Thursday, November 16, 2017

The Tax Reform Moving Target: The Shrinking Charitable Contribution Deduction (+ Slamming Rich (Private) Universities)

CongressGiven the uncertainty regarding whether Congress will enact tax reform, much less what will be in it, trying to analyze how it could affect charities and other tax-exempt nonprofits is probably a lost cause. But there are at least two aspects of the current proposals that are worth consideration, if only because they likely will resurface even if Congress does not enact them this time around.

Overall Changes Will Shrink the Charitable Contribution Deduction: Despite all the uncertainty, certain overall changes have remained constant: sharply increasing the standard deduction, lowering tax rates for at least some taxpayers, and reducing or repealing the estate tax. All of these changes will reduce or eliminate the importance of the charitable contribution deduction for many taxpayers and so reduce the incentives for charitable giving. How much? No one knows for sure, although the Indiana University Lilly Family School of Philanthropy made some estimates last May and the Tax Policy Center of the Urban Institute and Brookings Institution has made a more recent reduced giving estimate of between $12 billion and $20 billion in 2018 giving based on the House bill).

Today's Bad Guys: Rich (Private) Universities: Several provisions that provide modest revenues are targeted at wealthy colleges and universities, including a small investment income tax on large (relative to student population) endowments. In addition, several more general provisions would hit colleges and universities particularly hard, including the elimination of tax-exempt bonds as a source of financing for tax-exempt charities, an excise tax on compensation over $1 million paid by tax-exempt entities, and the repeal of many education-related tax benefits. It appears, however, that some of these provisions do not reach public colleges and universities, specifically the endowment investment income tax and the tax-exempt bond financing provisions. If not rectified, these differences would give public colleges and universities an advantage over their private counterparts, although how significant and advantage is unclear. For more, see the National Association of College and University Business Officers (NACUBO)'s website summarizing and raising concerns about these and other education-related tax reform provisions.

For more coverage from a nonprofit perspective, see Independent Sector and the Council on Foundations.

Lloyd Mayer

November 16, 2017 in Federal – Legislative, In the News | Permalink | Comments (0)

Friday, September 15, 2017

The DAFs Strike Back

As the use of donor advised funds grows, so does the legal attention to donor advised funds.   All of this attention started in (what seems like forever ago…) 2006, with the passage of the Pension Protection Act.   Since that time, we have seen the PPA-mandated Treasury study released in 2011, as well as a Congressional Research Service study on DAFs in 2012.   In addition, the National Philanthropic Trust releases an annual DAF report, the 2016 version of which can be found here.   Information and opinions abound, and yet, we still wait patiently for regulations under the donor advised fund excise taxes passed in 2006.  I’m quite certain those regulations will be arriving Soon.™ 

In the latest installment in the DAF oversight drama, Congress may now be considering mandatory payouts from DAFs as part of a larger tax reform effort.   Earlier this summer, Professors Ray Madoff of Boston College and Roger Colinvaux of Catholic University wrote to the Senate Finance committee to suggest a number of DAF reforms, including a mandatory payout proposal for DAFS (the Madoff/Colinvaux letter can be found here).

This week, the DAFs responded.  In their own letter to Senate Finance, a number of DAF sponsors set out the arguments in opposition to a mandatory DAF payout.   WealthMangement.com has a good summary of the DAF executive letter here, although I admit I can’t yet find a copy of the letter itself (if anyone has it ... please share if you can!)   

Personally, I think that the term “DAF” covers such a wide variety of accounts that a mandatory proposal might be harmful for some and yet not enough regulation for others.   But that’s another blog post, or maybe an article ….

EWW

September 15, 2017 in Current Affairs, Federal – Legislative, In the News | Permalink | Comments (1)

Thursday, September 14, 2017

2017 Guidestar Compensation Report

The 2017 Guidestar Compensation report is now available for purchase, although Guidestar does provide a sample of the report here.   Summaries highlight two issues:

    -    Nonprofit compensation has gone up over the last year, returning to pre-recession levels; and

    -    A gender gap persists in nonprofit compensation (not that that is particularly shocking to anyone in the sector, but it is nice to have some evidence to that effect)

 

EWW

September 14, 2017 in Current Affairs, In the News, Studies and Reports | Permalink | Comments (0)