Tuesday, January 2, 2018
James Fishman, Stephen Schwarz, and I have written supplemental update memos for our Nonprofit Organizations casebook reflecting the recently passed federal tax legislation. One update is for students and the other is for teachers. Foundation Press should make them available shortly, but for those of you who need them urgently please email any of us and we can send them directly to you.
Saturday, December 30, 2017
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?
Saturday, December 23, 2017
William A. Drennan (Southern Illinois University School of Law) has written Conspicuous Philanthropy: Reconciling Contract and Tax Laws, 66 Am. U. L. Rev. 1323 (2017). Below is Professor Drennan's abstract:
It sold for $15 million, and the IRS treated it as worthless. Avery Fisher, a titan of industry and a lover of classical music, made a generous contribution to renovate a charity’s building, and in exchange the charity agreed to name the building after Fisher in perpetuity. Forty years later, the Fisher family sold the naming rights back to the charity for $15 million in cash. The IRS treats these publicity rights as worthless when charities grant them, and this generates substantial tax benefits for the donor and the donor’s family. In contrast, the common law can treat these publicity rights as valuable consideration supporting an enforceable contract, and a charity may be liable for damages if it renames a building. Why the contradiction? What are the consequences? Should we reconcile these positions? How? This Article asserts that the common law contract approach is well-suited for today’s mega-million dollar charitable building naming rights deals, but the tax approach is outdated and inconsistent with U.S. Supreme Court precedents.
At a 1996 conference on the “Law of Cyberspace,” Judge Frank Easterbrook famously criticized “cyberlaw” as the equivalent of “The Law of the Horse”: superficial and unilluminating. He argued that we should study general legal principles and apply them to cyberspace and horses alike. Easterbrook’s genial jeremiad provoked a litany of responses defending the worthiness of cyberlaw, typically arguing that cyberspace regulation is sui generis and studying it illuminates general legal principles.
“Art law” is arguably analogous to “cyberlaw.” Or at least the “law of the horse.” While precious little law is specific to art, a rich and complex body of social norms and customs effectively governs artworld transactions and informs the resolution of artworld disputes. In any case, a smattering of scholars study art law and a similar number of lawyers practice it. In this essay, I will provide a brief overview of art law from three different perspectives: the artist, the art market, and the art museum.
Brian D. Galle (Georgetown University Law Center) has written The Dark Money Subsidy? Tax Policy and Donations to 501(c)(4) Organizations. Below is Professor Galle's abstract:
This Article presents the first empirical examination of giving to § 501(c)(4) organizations, which have recently become central players in U.S. politics. Although donations to a 501(c)(4) are not legally deductible, the elasticity of c(4) giving to the top-bracket tax-price of charitable giving is - 1.24, very close to the elasticity for charities. 501c(4) donations also correlate with changes in the tax savings from in-kind gifts. These responses could be driven either by donor-side behavior, such as misunderstandings or intentional over-claiming, or by firm-side fundraising.
I find evidence consistent with both explanations. 501(c)(4) fundraising is also highly responsive to the value of the deduction, with an elasticity of -2.9, and is more effective when the value of the deduction rises. These results imply that the U.S. is currently granting much larger subsidies to c(4) firms than is generally understood, and that subsidies for charity cause previously unobserved pressures on competing c(4)s.
Ellen P. Aprill (Loyola Law School - Los Angeles) has written Amending the Johnson Amendment in the Age of Cheap Speech, University of Illinois Law Review On-Line (Forthcoming). Below is Professor Aprill's abstract:
On November 2, 2017, the House Ways and Means Committee released its proposed tax reform legislation. It includes a provision amending the provision of the Internal Revenue Code, sometimes called the Johnson Amendment, that prohibits charities, including churches, from intervening in campaigns for elected office, at risk of loss of their exemption under section 501(c)(3). Under the Ways and Means proposal, as later revised and passed by the House, organizations exempt as charities under section 501(c)(3) would be permitted to engage in campaign intervention if “the preparation and presentation of such content . . . is in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose and . . . results in the organization incurring not more than de minimis incremental expenses.”
If such legislation becomes law, the IRS and the Department will be faced with the difficult task of giving guidance as to the meaning of “regular and customary,” “de minimis,” and “incidental.” It would likely have to address whether donations could be earmarked for campaign intervention so long as they were within the organization’s de minimis limit and involved regular and customary activities. Whatever rules are announced are sure to be controversial and complicate enforcement of the prohibition for campaign intervention that is more than de minimis. Given the lack of IRS resources and controversy regarding its attempts to regulate political activities of exempt organizations, the IRS may well hesitate to take action against possible violations.
However these terms are defined and enforced, a de minimis exception raises significant issues that demand attention in an era of what Professors Eugene Volokh and Richard Hasen have called “cheap speech.” These are issues that require consideration whether or not a de minimis exception is adopted in the current tax reform legislation.
After giving background on the Johnson Amendment, this essay discusses the impact of any de minimis exception regarding campaign intervention in the age of cheap speech. It concludes that the availability of cheap speech may have undermined the most common constitutional justification for the prohibition – that the government has no duty to subsidize speech – such that a new approach to limiting the political speech of charities is needed.
Wednesday, December 20, 2017
Goodrich & Busick: Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases
Luke W. Goodrich (The Becket Fund for Religious Liberty; University of Utah - S.J. Quinney College of Law) and Rachel N. Busick (The Becket Fund for Religious Liberty Fellow) have written Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases, Seton Hall Law Review (forthcoming). Below is their abstract:
This Article presents one of the first empirical studies of federal religious freedom cases since the Supreme Court’s landmark decision in Hobby Lobby. Critics of Hobby Lobby predicted that it would open the floodgates to a host of novel claims, transforming “religious freedom” from a shield for protecting religious minorities into a sword for imposing Christian values in the areas of abortion, contraception, and gay rights.
Our study finds that this prediction is unsupported. Instead, we find that religious freedom cases remain scarce. Successful cases are even scarcer. Religious minorities remain significantly overrepresented in religious freedom cases; Christians remain significantly underrepresented. And while there was an uptick of litigation over the Affordable Care Act’s contraception mandate — culminating in Hobby Lobby and Little Sisters of the Poor — those cases have subsided, and no similar cases have materialized. Courts continue to weed out weak or insincere religious freedom claims; if anything, religious freedom protections are underenforced.
Our study also highlights three important doctrinal developments in religious freedom jurisprudence. The first is a new circuit split over the Religious Freedom Restoration Act. The second is confusion over the relationship between the Free Exercise and Establishment Clauses that is currently plaguing litigation over President Trump’s travel ban. The third is a new path forward for the Supreme Court’s muddled Establishment Clause jurisprudence.
Tuesday, November 28, 2017
Last week the proposed GOP tax bill allowing churches to endorse political candidates while maintaining their tax-exempt status was expanded. The expanded version of the provision includes all 501(c)(3) organizations. The expanded provision was passed by the House Ways and Means Committee on Thursday. "A summary of the final bill states that no group would lose its non-profit status 'because of engagement in certain political speech, as long as the speech is in the ordinary course of the organization’s business' and the organization's political expenditures are minimal." Some people are worried that taxpayers will now switch their donations from political organizations to 501(c)(3) organizations to save the donors some money on taxes. If this happens the joint committee predicts that the U.S. Treasury Department would lose about 2.1 billion dollars over 10 years. To learn more about the effects of the expanded provision click here: https://www.usatoday.com/story/news/politics/2017/11/10/tax-bills-repeal-johnson-amendment-could-cost-taxpayers-more-than-1-billion/852554001/
Sunday, November 26, 2017
The new tax bill proposed in Congress has a provision that would allow churches to endorse political candidates while keeping their tax-exempt status. The provision would deny the IRS money to enforce denial or revocation of churches tax-exempt status for participating in political activity. The provision does not mention if other nonprofit organizations, or even synagogues or mosques will be safe from revocation of their tax-exempt status. Some people are opposed to the provision because they deem it as unfair advantage to Christian churches to funnel money into political campaigns. Republicans in support of the provision argue that, “the law is enforced unevenly, leaving religious leaders uncertain about what they are allowed to say and do.” Some Democrats in opposition to the provision argue that, “the measure comes too close to mixing church and state. Religious leaders already have First Amendment rights, just like anyone else, but if they want to get political, they don’t have a constitutional right not to pay taxes.” To learn more about the proposed tax bill and the effect of this provision click here: https://www.pbs.org/newshour/politics/republicans-push-bill-let-churches-endorse-political-candidates
Saturday, November 25, 2017
Churches are automatically 501(c)(3) organizations, and as a result, they don’t need to apply to receive their tax-exempt status. Like all 501(c)(3)’s, churches are prohibited from directly or indirectly participating in ant political campaign on behalf of any candidate for elective public office. They are also prohibited from making any contribution to a political campaign fund. Engaging in these activities may result in denial or revocation of their tax-exempt status. However, in 2014, over 1600 pastors participated in a movement called “Pulpit Freedom Sunday”, where they made election speeches and sent tapes of the speeches to the IRS. The IRS responded by issuing Revenue Ruling 2007-41 which gives examples of proper and improper political activity. Some examples of proper political activity include: Ministers can endorse candidates if they do not make the endorsement at an official church function, in an official church publication, or otherwise use the churches assets, and do not state that they are speaking as a representative of their church. Candidates can also come speak at churches if all candidates running for an office have equal access and the church does not endorse any of them. To learn more about what types of political activity churches can engage in click here: https://www.forbes.com/sites/peterjreilly/2015/09/20/tax-rules-forbid-churches-endorsing-candidates/#3bc0dee264e7
Friday, November 24, 2017
The Supreme Court decision in Citizens United removed the restrictions on independent spending in elections by corporations. Now, a great deal of the money contributed to political candidate’s campaigns comes from corporations. Some corporations are nonprofit entities, like 501(c)(3)s, which tax-exempt status forbids them from getting involved in political activity. There has been public controversy over 501(c)(4) organizations and whether they must disclose their donors to the public. Although, the case says that constitutionally nonprofits can contribute to candidate’s campaigns the tax code still forbids 501(c)(3) organizations from endorsing candidates, or make independent expenditures suggesting who the better candidate is. Also, if political activity is deemed to be the primary purpose of 501(c)(4) organizations the IRS can potentially tax these organizations. Finally, for 527 organizations, corporations can make unlimited expenditures to political organizations (super PACs). For more information on the effects of Citizens United on nonprofit organizations click here: https://bolderadvocacy.org/citizens-united or here: https://ssir.org/articles/entry/citizens_united_and_new_rules_for_nonprofits
Thursday, November 23, 2017
Citizens United, a 501(c)(4) organization, sued the Federal Election Commission seeking injunctive relief because they feared that they would be subject to civil and criminal penalties if it made a documentary against a presidential candidate within 30 days of the primary election in 2008. The issue in this case is whether a law that made it illegal for a corporation (for-profit or nonprofit) to release a movie endorsing a candidate 30 days before the election was constitutional. The supreme court of the United States held that the law was unconstitutional. The court held, “the government may not, under the First Amendment, suppress political speech on the basis of the speaker’s corporate identity, the federal statute barring independent corporate expenditures for electioneering communications violated the First Amendment.” By holding this law unconstitutional the supreme court allows nonprofit organizations to get involved in politics, but some nonprofit’s statutory criteria strictly forbid this and could endanger their tax-exempt status. Citizens United v. Federal Election Com’n, 130 S.Ct. 876-77 (2010). To read the entire case, click here: http://caselaw.findlaw.com/us-supreme-court/08-205.html
Wednesday, November 22, 2017
A 527 organization/political organization is a political organization. A political organization is defined as a party, committee, association, fund, or other organization organized and operated for the primary purpose of directly or indirectly accepting contributions or making expenditures, for an exempt purpose. These organizations are not fully tax exempt. They must pay taxes on income from sources other than contributions, membership dues and fundraising events. This kind of income usually comes from passive investments, like interest, dividends, and capital gain. Political organizations are organized to influence the selection, nomination, and election of political candidates to government offices. The primary example of a political organization are political action committees or super PACs. Donations to these organizations are not tax deductible. To learn more about these organizations, click here: https://www.irs.gov/pub/irs-tege/eotopici89.pdf
Tuesday, November 21, 2017
A 501(c)(4) organization is an organization that is exempted from federal income taxation. These organizations can be civic leagues or organizations not organized for profit, but operated exclusively for the promotion of social welfare, or local associations of employees, the membership of which is limited to the employees of a designated person or persons in a municipality and the net earnings of which are devoted exclusively to charitable, educational, or recreational purposes. An organization that is operated exclusively for the promotion of social welfare if it primarily engaged in promoting the common good and general welfare of the community. If the organization primarily benefits a private group of citizens it cannot qualify as a 501(c)(4) organization. Donations to these organizations are not tax deductible. To learn more about these organizations, click here: https://www.irs.gov/pub/irs-tege/eotopici03.pdf
Monday, November 20, 2017
This week I'm writing a series of blog posts that go together. The first part of the week will be dedicated to introducing some of the different types of non-profit organizations. Once the different organizations are introduced I will examine the Citizens United case and the effects that case had on the different organizations.
A 501(c)(3) non-profit organization is an organization that is organized for a tax-exempt purpose, and operates exclusively for a tax-exempt purpose. These organizations must avoid any private inurement, avoid substantial lobbying, and avoid any political activity. These can be any corporation, fund, or foundation that is organized exclusively for religious, charitable, scientific, public safety, literary or educational purposes, amateur sports, or for the prevention of cruelty to children or animals. These organizations are exempt from federal income taxation if no individual shareholder derives a personal profit from the operation of the organization. These organizations cannot generate personal profit or any other benefit for individuals or shareholders or engage in political campaigns, including endorsing candidates or influencing legislation. However, they can engage in voter education, registration, and get out and vote drives if they are non-partisan in nature. They may also expend up to one million dollars to lobby for legislation if they declare this money to the IRS. 501(c)(3) organizations must maintain records of finances for public inspection, allow for taxation on unrelated business income, and file a form 990. Any donations made to these organizations is tax deductible. Churches are automatically 501(c)(3) organizations. To learn more about these organizations, click here: https://non-profit-organization.laws.com/501c3
Sunday, November 19, 2017
LDF trusts raise questions as to tax treatment of the trust, whether the trust can take advantage of special rules applicable to political organizations, whether contributions to the LFD trusts can be deemed gifts excluded from the official’s income, whether donors to LDF trusts are subject to gift tax liability, whether the government official must report amounts distributed from the fund for legal expenses as income, and the extent to which deductions are available to the government officials for amounts expended from the trust on his or her behalf.
Samuel D. Brunson (Loyola-Chicago) and David J. Herzig (Valparaiso) have written A Diachronic Approach to Bob Jones: Religious Tax Exemptions after Obergefell, 92 Indiana Law Journal 1175 (2017). Here is the abstract:
In Bob Jones University v. United States, the Supreme Court held that an entity may lose its tax exemption if it violates a fundamental public policy, even where religious beliefs demand that violation. In that case, the Court held that racial discrimination violated fundamental public policy. Could the determination to exclude same-sex individuals from marriage or attending a college also be considered a violation of fundamental public policy? There is uncertainty in the answer. In the recent Obergefell v. Hodges case that legalized same-sex marriage, the Court asserted that LGBT individuals are entitled to “equal dignity in the eyes of the law.” Constitutional law scholars, such as Laurence Tribe, are advocating that faith groups might lose their status, citing that this decision is the dawning of a new era of constitutional doctrine in which fundamental public policy will have a more broad application.
Regardless of whether Obergefell marks a shift in fundamental public policy, that shift will happen at some point. The problem is, under the current diachronic fundamental-public-policy regime, tax-exempt organizations have no way to know, ex ante, what will violate a fundamental public policy. We believe that the purpose of the fundamental-public-policy requirement is to discourage bad behavior in advance, rather than merely to punish it after it occurs. As a result, we believe that the government should clearly delineate a manner for determining what constitutes a fundamental public policy. We recommend three safe harbor regimes that would allow religiously affiliated tax-exempt organizations to know what kinds of discrimination are incompatible with tax exemption. Tying the definition of fundamental public policy to strict scrutiny, to the Civil Rights Act, or to equal protection allows a tax-exempt entity to ensure compliance, ex post. In the end, though, we believe that the flexibility attendant to equal protection, mixed with the nimbleness that the Treasury Department would enjoy in crafting a blacklist of prohibited discrimination, would provide the best and most effective safe harbor regime.
Adam Chodorow (Arizona State) has written a brief analysis of Gaylor v. Mnuchin for the ABA Tax Times. titled A Step Toward Greater Clarity on Clergy Tax Exemptions? Here is the first paragraph:
On October 6, 2017, the U.S. District Court for the Western District of Wisconsin declared section 107(2) of the Internal Revenue Code unconstitutional. The provision permits “ministers of the gospel” to exclude from income compensation designated as a housing allowance, thus giving churches and other religious organizations the ability to provide tax-free housing to their ordained ministers. The provision applies not only to parish priests living in modest housing, but also to televangelists like Joel Osteen, who currently lives tax-free in his $10.3 million mansion. It also applies to ministers who work in church-affiliated schools as teachers and administrators. This affords a significant benefit for certain schools whose religious tenets include the ministry of all believers. In one case, a basketball coach was entitled to exclude his housing allowance from income. The government foregoes around $800 million in revenue per year as a result of this provision, and, if the decision stands, it could have a significant impact on churches and other religious institutions.
Cummings & Rawhouser: Lawyers and Bar Associations as Influencers in the Negotiated Landscape of Social-Business Hybridization
Michael E. Cummings (Arkansas Business) and Hans Rawhouser (UNLV Business) have written Lawyers and Bar Associations as Influencers in the Negotiated Landscape of Social-Business Hybridization, 17 Wyoming Law Review 457 (2017). From the introduction:
To complement prior legal scholarship on the Benefit Corporation and L3C movements—which focused on comparing the nuances in various states’ legal approaches, or compared firms’ adoption rates across jurisdictions—this article focuses on understanding the various interests that shaped these laws in different states. This article analyzes a diverse and content-rich product of the legislative process: transcripts and written testimony from over 100 separate committee hearings and legislative floor debates. This approach to understanding the legislative process helps identify patterns and tensions between actors with similar but divergent interests. Although these potential tensions are present between several different groups involved in this process, such as business owners, nonprofit leaders, legislators and other public officials, this article mainly focuses on the policy development involvement of the legal community—attorneys and bar associations.