Monday, May 2, 2016
Last week the IRS published final regulations under IRC section 4944 that finalize several new examples of program-related investments by private foundations. The Service made few changes to the proposed regulations, so the most interesting part of the final regulations is actually the Summary of Comments and Explanation of Revisions, which summarizes the 15 comments received by the IRS and explains why Treasury did (or more commonly, did not) adopt the requested changes. For example, this section discusses the conflicting comments received regarding adding one or more examples relating to low-profit limited liability companies (L3Cs) or benefit corporations and explains that no such examples are included in the final regulations because "[t]he Treasury Department and the IRS see no need to amend the examples to refer more narrowly to an L3C or benefit corporation when such status is not determinative of the examples' conclusions."
In both Congress and the federal courts battles continue over disclosure of information relating to tax-exempt organizations. In California, a federal district judge ruled that California Attorney General Kamala Harris cannot force Koch brothers-related IRC section 501(c)(3) Americans for Prosperity Foundation (AFP) to provide a copy of the substantial donor list it files with the IRS (Schedule B to Form 990). While the decision was on an as-applied challenge and so only directly affects AFP, it was somewhat surprising given the earlier Ninth Circuit decision upholding the state disclosure requirement against a facial challenge. Whether the latest decision survives the almost certain appeal remains to be seen, however. Coverage: L.A. Times; Washington Post.
Not satisfied with the limited protected provided by this decision, Congress is now moving to eliminate the Schedule B entirely. H.R. 5053 cleared the House Ways and Means Committee late last week on a party-line vote, according to the Wall Street Journal (quoting LSU Professor Philip Hackney). The bill's fate is unclear, however, as it has already attracted public opposition from various outside groups, the N.Y. Times editorial board, and the Ranking (Democratic) Member of the Committee, according to the EO Tax Journal. It probably does not help its chances that the President for Government & Public Affairs at Koch Companies Public Sector, LLC publicly urged passage of the legislation.
Finally, the Sixth Circuit recently moved the disclosure needle in the other direction with respect to applicants for recognition of exemption. In In re United States (United States v. NorCal Tea Party Patriots, et al.), the court resolved a discovery dispute by holding that the names, addresses, and taxpayer-identification numbers of applicants for tax-exempt status are not “return information” and so are not protected from discovery by IRC section 6103, even if their applications are pending, withdrawn, or denied. The only immediate effect of the decision is to allow the plaintiffs to identify possible class members in this class-action litigation arising out of the IRS Exempt Organizations Division selection of section 501(c)(4) applicants for additional scrutiny. But the larger ramification is that such information likely is now exposed to Freedom of Information Act requests that can be litigated in the Sixth Circuit, as section 6103 was the sole barrier to such requests. IRS Commissioner John Koskinen also suggested that some other types of IRS filings may also be exposed to public disclosure as a result of this decision. For those who may be interested in learning more about the ramifications of this case, I will be providing additional coverage in the "At Court" section of the ABA Tax Times' next issue. Additional coverage: Wall Street Journal.
Saturday, April 30, 2016
RP Golf, LLC v. Comm’r—Conservation Easement Deduction Denied Because Mortgages Not Subordinated at Time of Donation
In RP Golf, LLC v. Comm'r, T.C. Memo. 2016-80 (RP Golf II), the Tax Court sustained the IRS’s disallowance of a $16.4 million deduction for a 2003 donation of a conservation easement on two private golf courses in Kansas City, Missouri. Although the IRS challenged the claimed deduction on a number of grounds, including failure to satisfy the conservation purposes test and overvaluation, the Tax Court denied the deduction on the ground that the taxpayer failed to satisfy the mortgage subordination requirement.
In RP Golf, LLC, T.C. Memo. 2012-282 (RP Golf I), the taxpayer had been forced to concede that the donation did not satisfy the clearly delineated government policy prong of the open space conservation purposes test because the Missouri conservation policy that it referenced in the easement deed did not apply to the subject properties. The Tax Court granted the IRS’s motion for summary judgment on that issue, but material facts regarding whether the donation complied with other requirements for a deduction (including the habitat protection conservation purpose test) continued to be in dispute.
On December 29, 2003, RP Golf, through National Golf, a single member LLC of which it was the sole member, executed an agreement “purporting” to grant a conservation easement to the Platte County Land Trust (PLT), a Missouri charitable conservation organization. The Tax Court referred to the easement as the “PLT agreement.” The PLT agreement expressly reserved the right for National Golf and its successors or assigns to use the property as a golf course and National Golf continues to operate two private golf clubs on the property. The legal description of the property attached to the PLT agreement included multiple sections of land, including land identified as “part of the northwest quarter of section 26,” which National Golf never owned. PLT agreed to inspect and, if necessary, enforce the easement for an annual fee of approximately $15,000.
When National Golf executed the PLT agreement, the property was subject to senior deeds of trust held by two banks. Consents subordinating the interests of the two banks to the easement were not executed by officers of the banks until April 14, 2004, approximately 100 days after execution of the PLT agreement. The consents were recorded on April 15, 2004, and each states that the subordination was made effective as of December 31, 2003, even though National Golf executed the PLT agreement on December 29, 2003, and recorded it on December 30, 2003.
The Tax Court first explained that, while RP Golf claimed a deduction for the value of a conservation easement on approximately 277 acres, neither RP Golf nor National Golf owned an interest in “the northwest quarter of section 26.” Accordingly, PLT had no power or authority to enforce the easement with regard to section 26, and the conveyance of the easement with regard to that property was not a valid conservation contribution.
The Tax Court then explained, citing Mitchell v. Comm’r, 775 F.3d 1243 (10th Cir. 2015) and Minnick v. Comm’r, 796 F.3d 1156 (9th Cir. 2015), that if there is an outstanding mortgage on the subject property at the time of a conservation easement’s donation, the donor must obtain a subordination agreement from the lender at the time of the gift. The Tax Court considered and rejected RP Golf’s argument that the two banks had orally agreed to subordinate their interests before the date of the gift, explaning “the evidence fails to establish that RP Golf and [the banks] entered into any agreements, oral or written, binding under Missouri law, regarding subordination ... on or before ... the date of the PLT agreement.
The Tax Court concluded:
The property described in the PLT agreement ... was subject to preexisting, unsubordinated mortgages on the date of the grant. Because the easement granted by National Golf could have been extinguished by foreclosure between December 29, 2003, and April 15, 2004, it was not protected in perpetuity and, therefore, was not a qualified conservation contribution.
Nancy A. McLaughlin, Robert W. Swenson Professor of Law, University of Utah S.J. Quinney College of Law, Salt Lake City, Utah
Friday, April 29, 2016
In Carroll v. Comm’r, 146 T.C. No. 13 (2016), the Tax Court sustained the IRS’s disallowance of approximately $650,000 of carryover deductions claimed with regard to a 2005 donation of a conservation easement to the Maryland Environmental Trust (MET) and the Land Preservation Trust (LPT), as joint holders. The subject 21-acre property is located in the Green Spring Valley National Register Historic District of Lutherville, Maryland. MET is a quasi-public entity that the Maryland legislature established in 1967 to conserve the environment; it is both a unit of the Maryland Department of Natural Resources and governed by a private board of trustees. LPT is a charitable conservation organization.
While the Tax Court determined that the easement at issue was a "qualified real property interest" and satisfied the open space conservation purpose test, the formula included in the easement deed regarding the payment of proceeds to the holders in the event of a judicial extinguishment did not satisfy Treasury Regulation requirements.
Qualified Real Property Interest
The Tax Court determined that the conservation easement was a “qualified real property interest” as defined in IRC § 170(h)(2)(C) because the easement contained “legally enforceable restrictions that will prevent uses of the retained interest in the subject property that are inconsistent with the conservation purposes of the contribution.”
The Tax Court also determined that the easement satisfied the open space conservation purposes test under IRC § 170(h)(4)(A)(iii)(II), which requires that preservation of the property be “pursuant to a clearly delineated Federal, State, or local governmental conservation policy” and “yield a significant public benefit.”
In interpreting the governmental conservation policy requirement, Treasury Regulation § 1.170A-14(d)(4)(iii)(B) provides that
Acceptance of an easement by an agency of the Federal Government or by an agency of a state or local government (or by a commission, authority, or similar body duly constituted by the state or local government and acting on behalf of the state or local government) tends to establish the requisite clearly delineated governmental policy, although such acceptance, without more, is not sufficient. The more rigorous the review process by the governmental agency, the more the acceptance of the easement tends to establish the requisite clearly delineated governmental policy. For example, in a state where the legislature has established an Environmental Trust to accept gifts to the state which meet certain conservation purposes and to submit the gifts to a review that requires the approval of the state’s highest officials, acceptance of a gift by the Trust tends to establish the requisite clearly delineated governmental policy. However, if the Trust merely accepts such gifts without a review process, the requisite clearly delineated governmental policy is not established.
In finding that the easement in Carroll satisfied the open space conservation purpose test, the Tax Court explained that the thoroughness of MET’s easement-review process, combined with the requisite approval of the easement from Maryland’s highest officials (the Governor, the Comptroller, and the Treasurer of Maryland), established that the easement preserves open space pursuant to a clearly delineated federal, state, or local governmental conservation policy. The Tax Court also determined that preservation of the 21-acre property yielded a significant public benefit because (i) the property is in a highly desirable area under development pressure, (ii) the property is subject to a restrictive type of zoning established to foster and protect agricultural lands in certain areas, (iii) the valley in which the property is located is specifically designated in the County’s Master Plan as an agricultural preservation area, and (iv) four properties adjacent to the property are encumbered by conservation easements held by MET or a state agency.
Noncompliant “Proceeds” Clause
To be eligible for a deduction under § 170(h), the conservation purpose of the easement must be “protected in perpetuity.” IRC § 170(h)(5)(A). The Treasury Regulations interpreting § 170(h) elaborate on this protected-in-perpetuity requirement by setting forth substantive rules to safeguard the conservation purpose of a contribution. Treas. Reg. § 1.170A-14(g)(1)-(6). Most pertinent to this case is Treasury Regulation § 1.170A-14(g)(6), the “extinguishment” regulation, which provides that a conservation easement may be extinguished only (i) in a judicial proceeding, (ii) upon a finding that continued use of the property for conservation purposes has become “impossible or impractical,” and (iii) with a payment (upon a subsequent sale, exchange, or involuntary conversion of the subject property) of at least a minimum proportionate share of proceeds to the holder to be used in a manner consistent with the conservation purposes of the original contribution.
The Tax Court explained that the minimum proportionate share of proceeds that must be payable to the holder following extinguishment is equal to the percentage determined by (i) the fair market value of the conservation easement on the date of the gift (the numerator) over (ii) the fair market value of the property as a whole on the date of the gift (the denominator). For example, if the fair market value of an easement on the date of the gift was $300,000, and the fair market value of the property as a whole on the date of the gift was $1,000,000, the easement represented 30% of the value of the property on the date of the gift, and the holder must be entitled to at least 30% of the proceeds following the easement’s extinguishment. The Tax Court noted that the requirements of the extinguishment regulation “are strictly construed; if a grantee is not absolutely entitled to a proportionate share of extinguishment proceeds, then the conservation purpose of the contribution is not protected in perpetuity.”
The extinguishment clause in the conservation easement deed at issue in Carroll did not comply with the proceeds requirement described above. The deed provided that, upon extinguishment, the holders would be entitled to a share of proceeds equal to the percentage determined by (i) "the deduction for federal income tax purposes allowable" by reason of the donation over (2) the fair market value of the property as a whole on the date of the gift. The court explained that, if the IRS were to disallow the deduction for reasons other than valuation and the easement were later extinguished in a judicial proceeding, the numerator in this formula would be zero and MET and LPT would not receive the minimum proportionate share of proceeds as is required. The court also noted that deductions are denied for many reasons unrelated to valuation, and, in fact, the IRS made many arguments for disallowance of the taxpayers’ claimed deductions in Carroll that were not based on valuation.
The Tax Court also distinguished its holding in Carroll from the First Circuit’s holding in Kaufman. In Kaufman, the First Circuit held that donors of a facade easement had satisfied the proceeds requirement because the easement deed correctly stated the proceeds formula and the donee organization had an absolute right as against the donors for its share of proceeds upon extinguishment. In Carroll, in contrast, the donee organizations would not be entitled to any proceeds in certain circumstances based on the formula included in the easement deed. Consistent with the First Circuit’s reasoning in Kaufman, failing to guarantee that the donees would be entitled to at least the required minimum proportionate share of proceeds upon extinguishment, and providing a potential windfall to the donor or the donor’s successors as a result, was fatal to the deduction.
The Tax Court also found that the donors’ deductions were not saved by the last sentence in Treasury Regulation § 1.170A-14(g)(6)(ii), which provides an exception to the requirement that the holder must receive at least a minimum proportionate share of proceeds upon extinguishment if “state law provides that the donor is entitled to the full proceeds from the conversion without regard to the terms of the [easement].” Maryland has an unusual provision in its state code. Pursuant to this provision, if land subject to an easement held by MET or the Maryland Historical Trust is condemned, damages shall be awarded “to the fee owner ... and shall be the fair market value of the land or interest in it, computed as though the easement ... did not exist.” This presumably means the holder would receive nothing unless the parties agreed that the fee owner would give some of the proceeds to the holder. The Tax Court held that this state law provision did not save the deductions in Carroll because (i) the provision only applies to easements held by MET and, thus, the proceeds formula in the deed still violated the proceeds requirement with regard to LPT, and (ii) the provision applies only to condemnations and, thus, the proceeds formula in the deed still violated the proceeds requirement with regard to judicial extinguishments not based on condemnation (e.g., where changes in the neighborhood have made continuing to protect the property for conservation purposes impossible or impractical).
The Tax Court explained that requirements set forth in the extinguishment regulation “are designed to protect the conservation purpose of a conservation contribution and must be satisfied at the outset for a contribution to be deductible.” The Tax Court further explained that, although the extinguishment regulation “imposes a technical requirement, it is a requirement intended to preserve the conservation purpose, and [the taxpayers] could have avoided this adverse outcome by strictly following the proportionality formula set forth in the regulation.”
The Tax Court also dismissed the taxpayers’ argument that noncompliance with the proceeds requirement should be forgiven because the probability of extinguishment of the easement was “so remote as to be negligible.” Citing Kaufman v. Schulman, 687 F.3d 21 (1st Cir. 2012), the Tax Court explained that easement donors cannot satisfy the requirements of the extinguishment regulation by merely establishing that the possibility of a change in conditions triggering judicial extinguishment is unexpected. To accept such an argument, explained the Tax Court, would nullify the requirements because the extinguishment regulation, by its terms, applies only to “unexpected” conditions, which likely encompass events that are so remote as to be negligible.
The Tax Court found that the taxpayers in Carroll were liable for 20% accuracy-related penalties and did not qualify for the “reasonable cause” exception to those penalties. The Tax Court explained that one of the taxpayers is a highly educated medical school graduate who had previous experience with conservation easements; although the taxpayers had hired an attorney to draft a related gift deed for the subject property, that attorney was not a tax attorney and “d[id] not answer tax-related questions or give tax advice;” the taxpayers offered no evidence that would explain why the terms of the easement varied from the proceeds requirement in the Treasury Regulation; and the taxpayers did not explain why they failed to seek competent advice from a tax attorney or other adviser to ensure that the easement complied with the pertinent regulations. The Tax Court concluded that, in the light of the high level of sophistication of one of the taxpayer's and his experience with conservation easements, the taxpayers did not demonstrate that they acted with reasonable cause and in good faith in not seeking competent tax advice regarding the donation.
The Tax Court declined to impose substantial or gross valuation misstatement penalties on the taxpayers, however, because the IRS did not assert those penalties on a timely basis.
There are a number of takeaways from Carroll.
First, conservation easement donations generally involve high-dollar deductions and the requirements of § 170(h) and the regulations are numerous, complex, and often strictly construed. Accordingly, prospective easement donors should hire tax counsel with significant expertise in the easement donation context to assist them with their donations. If they do not, they run the risk of not only having their deductions denied, but also being subject to penalties for failure to seek tax advice.
Second, donors of conservation easements should not rely on a donee organization or its template or model easement to satisfy the requirements for the deduction. The risks of noncompliance (audit, litigation, denial of deductions, and interest and penalties) fall solely on the shoulders of the donor, and it is the responsibility of the donor and the donor’s legal counsel to ensure that all requirements are satisfied. Most donees are careful to instruct donors that they cannot and do not provide legal advice, and donors need to take that warning to heart.
Finally, the amount of litigation in this context could be significantly reduced if the IRS developed safe harbor or “sample” conservation easement provisions to satisfy the key perpetuity requirements of § 170(h). While many provisions of an easement must be tailored to the specific property and situation, most of the perpetuity requirements, including those addressing judicial extinguishment and proceeds, could be satisfied with provisions that generally should not vary from easement to easement. Safe harbor provisions would facilitate both donor compliance and IRS review, and would help to ensure that the public investment in easements is actually “protected in perpetuity” as Congress intended. Moreover, developing sample provisions would not be a novel approach to addressing noncompliance and abuse. The Treasury developed sample trust provisions with annotations in the charitable remainder trust and charitable lead trust contexts and those provisions, which are widely used, have greatly facilitated compliance and significantly reduced abuses.
Nancy A. McLaughlin, Robert W. Swenson Professor of Law, University of Utah S.J. Quinney College of Law
Thursday, April 28, 2016
Prince will no doubt have many legacies - musical and otherwise. One can only hope that his philanthropic legacy will be one of them.
During his lifetime, Price quietly supported any number of charitable organizations, mostly in the areas of education, urban renewal and the environment. I, for one, did not know that he was once named one of PETA's sexiest vegetarians. The general consensus appeared to be that he would have supported at death many of the charitable organizations and causes he supported during his lifetime.
Sadly, it appears that the tragedy of Prince's early death may now be compounded by the fact that he may have died intestate. According to news reports, his sister filed a petition for administration without a will. This is likely to cause difficulties because Prince had no direct heirs or ancestors, leaving a number of siblings and half-siblings. In addition, his estate is likely made up a significant amount of difficult to manage and difficult to value intellectual property assets, including unpublished music. Of course, this also means that to the extent Prince intended to benefit charitable causes through his estate, those charities may be out of luck if bulk of his assets pass through intestate succession.
I hope that Prince's estate does not devolve into another sad case study for estate and charitable planners everywhere.
Wednesday, April 27, 2016
As the spring submission cycle limps to a close and Redyip prepares to go into hibernation, I'd like to take a moment to reflect on the editing process awaiting all of those articles that have been accepted for publication. Every legal scholar is familiar with both the relief of accepting a publication offer and the ensuing agony of the editing process. But I'd like to focus on two particular aspects of the editing process: publication agreements and permissions. Specifically, what rights do law journals expect authors to convey and when do law journals require authors to obtain permission to use elements of copyrighted works?
Legal scholars implicitly (and often explicitly, via creative commons licenses) expect open access to their articles, as shown by their near-universal use of open access repositories like SSRN. And law journals are (typically) published by charitable organizations, which ought to promote open access to legal scholarship. In addition, law journals (typically) publish scholarly works that often comment on and criticize other works. Using an element of a copyrighted work for the purpose of scholarly commentary or criticism is a core fair use, which does not require permission.
And yet, an empirical study that I conducted with the assistance of Christopher J. Ryan, Jr. (Vanderbilt University, Peabody College - Higher Education Law & Policy) and Franklin L. Runge (Faculty Services Librarian, University of Kentucky College of Law) shows that many law journals have adopted copyright policies that are inconsistent with open access publishing and fair use doctrine. Possibly even more unsettling, some law journals even appear not to understand their own copyright policies.
The article is (provisionally) titled An Empirical Study of Law Journal Copyright Practices. Here is the abstract:
This article presents an empirical study of the copyright practices of American law journals in relation to copyright ownership and fair use, based on a 24-question survey. It concludes that many American law journals have adopted copyright policies that are inconsistent with the expectations of legal scholars and the scope of copyright protection. Specifically, many law journals have adopted copyright policies that effectively preclude open-access publishing, and unnecessarily limit the fair use of copyrighted works. In addition, it appears that some law journals may not understand their own copyright policies. This article proposes the creation of a Code of Copyright Best Practices for Law Journals in order to encourage both open-access publishing and fair use.
Incidentally, this article is still in draft form and comments or suggestions are very welcome.
Brian L. Frye
Tuesday, April 26, 2016
We received the following call for papers, which may be of interest to many of you. EWW
Nonprofit and Philanthropy Law
LLCS, NEW CHARITABLE FORMS, AND THE RISE OF PHILANTHROCAPITALISM
2017 AALS Annual Meeting
January 3-7, 2017
San Francisco, CA
In December 2015, Facebook founder Mark Zuckerberg and his wife, Dr. Priscilla Chan, pledged their personal fortune—then valued at $45 billion—to the Chan-Zuckerberg Initiative (CZI), a philanthropic effort aimed at “advancing human potential and promoting equality.” But instead of organizing CZI using a traditional charitable structure, the couple organized CZI as a for-profit Delaware LLC. CZI is perhaps the most notable example, but not the only example, of Silicon Valley billionaires exploiting the LLC form to advance philanthropic efforts. But are LLCs and other for-profit business structures compatible with philanthropy? What are the tax, governance, and other policy implications of this new tool of philanthrocapitalism? What happens when LLCs, rather than traditional charitable forms, are used for “philanthropic” purposes?
From the heart of Silicon Valley, the AALS Section on Agency, Partnerships LLCs, and Unincorporated Associations and Section on Nonprofit and Philanthropy Law will host a joint program tackling these timely issues. In addition to featuring invited speakers, we seek speakers (and papers) selected from this call.
Any full-time faculty of an AALS member or fee-paid school who has written an unpublished paper, is working on a paper, or who is interested in writing a paper in this area is invited to submit a 1- or 2-page proposal by June 1, 2016. The Executive Committees of the Sections will review all submissions and select two papers by July 1, 2016. If selected, a very polished draft must be submitted by November 30, 2016. All submissions and inquiries should be directed to the Chairs of the Sections at the email addresses below:
University of Oregon School of Law
Garry W. Jenkins
Associate Dean for Academic Affairs
John C. Elam/Vorys Sater Professor of Law
Moritz College of Law, Ohio State University
Friday, April 22, 2016
A handful of professors have sued their professional society, claiming that the association’s boycott of Israel exceeds the organization’s mission under its charter. According to the Complaint, the American Studies Association’s constitution says:
The object of the association shall be the promotion of the study of American culture through the encouragement of research, teaching, publication, the strengthening of relations among persons and institutions in this country and abroad devoted to such studies, and the broadening of knowledge among the general public about American culture in all its diversity and complexity.
In 2013, the association adopted a resolution boycotting “Israeli academic institutions.” The plaintiffs are current or former association members who disagree with the boycott. In addition to a procedural complaint about the way the vote was held, the plaintiffs argue that the decision to boycott Israel exceeds the purposes of the organization under their charter since it does not further the scholarly objective of the association (breach of fiduciary duty and ultra vires action). (You may recall a similar dispute about this organization arose in 2014, when a professor challenged the organization's tax-exempt status--a challenge John Colombo predicted on this blog was going nowhere fast.)
h/t: Volokh Conspiracy via Jonathan Adler (@jadler1969)
From the perspective of nonprofit law, it will be interesting to see what level of judicial deference gets applied to the board’s decision: does Business Judgment Rule apply or is it a more searching review? And would plaintiffs' argument pass either of these standards?
My quick take is that this suit seems like a stretch. To begin, the boycott causes the association to NOT do something (i.e., decline to engage with one nation’s academics), and I don’t think I’ve ever seen a nonprofit successfully sued for not engaging in some programmatic activity or with some set of prospective clients, even if it is selective, arbitrary, or policy-driven. Also, food banks decline to buy from producers who don’t use environmentally-friendly methods; housing organizations decline to contract with organizations that don’t have certain personnel policies. It’s hard for me to imagine any of these purchasing decisions being successfully challenged in court on the grounds that they exceed the organization’s mission.
Second, judicial review without deference in this case would essentially ask a Court to override the judgment of a group of scholars on what types of activities further their scholarly mission, which I suspect most courts are ill-suited and reluctant to do. Moreover, judicial involvement here could set a precedent of second-guessing nonprofits when they wade into policy disputes or controversial areas, which would undercut the independence of the nonprofit sector. The mere fact that there is passionate disagreement on the issue suggests it is better to be hashed out by nonprofits within the confines of their organizations without courts getting involved. (I'm reminded of the Supreme Court's admonition in Boy Scouts v. Dale, when a lot of people (including me) couldn't understand how excluding gay scoutleaders furthered the organization's mission, yet the Supreme Court heavily deferred to the organization's judgment in the process of concluding that the organization had a constitutional exemption from state laws. If deference is warranted in a constitutional case, then surely it is warranted under usual corporation law principles.)
Finally, while there is often a compelling argument for keeping nonprofits close to their mission, the need for judicial involvement here is minimal. Exit is cheap and easy for association members who don’t like the direction of the organization. There’s no forced membership, as in a union or Home Owners Association. Nor are monitoring costs excessively high, as might be the case for a financial donor contributing to a social service charity. Nor is there a huge stockpile of donated money being held in trust for past donors and future beneficiaries. With the ample opportunities of voice (voting) and exit (quitting), the policy argument for courts treating this as a reviewable decision is relatively weak.
This case seems like a tough sell under the usual standards of nonprofit corporation law. I wouldn't have voted the way that the Association did, but a main reason we have the nonprofit sector is to let people freely associate themselves, without me or anyone else agreeing with their choices. I don't think the burden has been met that this association has departed enough from its charter to warrant judicial override.
Readers, what do you think? Does this case state a claim for ultra vires or breach of a fiduciary duty? Should courts review associations’ actions in cases like this?
Monday, April 11, 2016
Happy National Volunteer Week! We know that volunteering can do lots of good, but what about when volunteering goes bad? Volunteer law is one of my primary scholarly interests, and in honor of the millions of Americans who volunteer each year, below are just a few of the ways that law deals with volunteering disasters. (But don’t be deterred! Volunteers live longer, happier lives, and these problems probably won’t happen to you or your organization.)
Volunteer Liability: Who gets sued when a volunteer commits a tort? The Federal Volunteer Protection Act provides a low level of immunity—with lots of exceptions and caveats—to volunteers for simple negligence. (Ask yourself whether regulation of unpaid labor fits within Congress’s power under the commerce clause.) Some states also offer immunity of different flavors. Iowa immunizes volunteers for almost anything they do within the scope of their employment. Vermont immunizes volunteer librarians. (?!) Ohio just enacted a law immunizing volunteer architects. (Why architects? No idea. Underworked lobbyists, possibly.)
Fortunately, volunteers are rarely sued, and most suits involve intentional torts or accidents while driving (covered by insurance). (So, please don't sue me.)
Organizational liability: Organizations are liable for the acts of their agents under common law master-servant principles. This applies to employees and volunteers alike. But volunteers often interact with organizations in less formal ways than employees, and not always as simple to determine scope of “employment.” Notably, immunity for the volunteer does NOT immunize the organization, making charities the prime defendant when suit is brought. Which, again, is fortunately pretty rare, especially for your small, community-based charity.
Volunteer Discrimination: Employers can’t discriminate against employees on race, sex, religion, disability, and other protected characteristics. Sometimes, but not often, these laws also protect volunteers. (In fact, there is a circuit split about whether unpaid workers are covered under federal employee anti-discrimination laws.) Still, even if anti-discrimination isn’t the law, be nice to your volunteers. It’s the right thing to do.
Volunteers and Minimum Wage: One of the least settled areas of law involves application of minimum wage laws to volunteers. Cases are all over the place on this, and challenges involving unpaid interns and student-athletes add layers of confusion to the tests for charitable volunteers. Department of Labor has issued various informal “guidance” (read: no Chevron deference) on the topic of unpaid workers, but their positions are rejected by courts as often as they are upheld. Nevertheless, it would be pretty weird if your organization violated minimum wage laws by allowing someone to volunteer for your charity. (Not legal advice: just common sense.) One caveat is that a paid employee of your nonprofit can’t “volunteer” for your organization performing the same type of services as would normally be paid to perform. (Note that the linked regulation only applies to government, but Department of Labor applies same rationale to nonprofits).
Much, much more could be said, which is why this is a fun area in which to write (not to mention volunteering as a rewarding personal pastime). Happy National Volunteer Week everyone!
Monday, April 4, 2016
The 2015 IRS Data Book is now available:
The Internal Revenue Service (IRS) Data Book is published annually by the IRS and contains statistical tables and organizational information on a fiscal year basis. The report provides data on collecting the revenue, issuing refunds, enforcing the law, assisting the taxpayer, and the budget and workforce.
With a new online format, this year’s publication makes navigating data on taxpayer assistance, enforcement, and IRS operations easier, with graphic depictions of key areas and quick links to the underlying data. You can view selected summary graphs, key statistics, and descriptions of the tables and the IRS functions they cover. To download data tables on IRS and taxpayer statistics, visit the relevant section page listed on the left-side navigation column.
The IRS closed 101,962 applications for tax-exempt status. Of those, the IRS approved tax-exempt status for 95,372 organizations and denied tax-exempt status for 67 organizations (2015 IRS Data Book, Table 24). The vast majority of applicants (s92,653 applications closed) sought exemption as charitable organizations. Of these charitable applicants, 86,915 were approved and 57 were denied tax-exempt status (2015 IRS Data Book, Table 24). The total number of tax-exempt organizations registered with the IRS at the end of fiscal year 2015 was 1,702,267, with 1,184,547 of those being tax-exempt charitable organizations (2015 IRS Data Book, Table 25). However, the actual number of tax-exempt charitable organizations is likely greater because certain charitable organizations are not required to apply for recognition of tax-exempt status. These organizations include churches, interchurch organizations of local units of a church, integrated auxiliaries of a church, conventions or associations of churches, and organizations (other than private foundations) that do not normally receive more than $5,000 in gross receipts each year.
Robert G. Picard (University of Oxford-Reuters Institute for the Study of Journalism), Valerie Belair-Gagnon (Yale Law School-Information Society Project), Sofia Ranchordas (Yale Law School-Information Society Project; Tilburg Law School-Department of Public Law), Adam Aptowitzer (Drache Aptowitzer, LLP), Roderick Flynn (Dublin City University), Franco Papandrea (University of Canberra-Communications and Media Policy Institute), and Judith Townend (Institute of Advanced Legal Studies) recently posted their joint research study, "The Impact of Charity and Tax Law and Regulation on Not-for-Profit News Organizations" to SSRN. Below is an abstract of their report:
Since the advent of the Internet, numerous media organizations have been forced to adopt new business models and convert into not-for-profit start-ups or hybrid entities. However, not-for-profit news organizations have faced an important challenge: outdated legal frameworks that were not designed to facilitate the development of digital journalism. This report inquires whether the legal systems in which they operate provide a conducive environment for charitable media and whether it can help explain their development. The legal qualification of news organizations as charities and the conferral of tax-exempt status are necessary to gather the necessary public support for their activities. However, in a number of jurisdictions, not-for-profit media outlets are often confronted with long-established legal frameworks that do not include journalistic activities within the concept of ‘charitable status’. These news organizations thus face significant delays and uncertainties during the process of obtaining tax-exempt status.
This report contributes to the evolving debate on not-for-profit news start-ups by examining legal systems that determine whether charitable and tax exempt status and a variety of benefits associated with them can be granted. This report compares and contrasts legislative frameworks and policies, and assesses how they affect both the development of startups and existing news organizations that would like to become charities and gain tax-exempt status. It also provides an overview of best regulation practices in an attempt to tackle legal and societal challenges that need to be addressed.
The study draws on the regulatory systems in five countries: Australia, Canada, Ireland, the United Kingdom (England and Wales), and the United States.
Saturday, April 2, 2016
John R. Brooks (Georgetown University Law Center) recently published "The Missing Tax Benefit of Donor-Advised Funds," 150 Tax Notes 1013-1024 (2016). Below is an abstract of Professor Brooks' article:
Donor-advised funds are often billed, by both their critics and advocates, as providing a preferred from of charitable donation relative to typical giving. This is because the tax law allows for a full deduction of the money or property contributed to the fund in the year of the contribution, even if the money does not go to operating charities until a future year.
In this report, I show that this feature of donor-advised funds does not actually provide an additional benefit over typical gifts of property to charities, and in many cases creates a tax cost. Furthermore, in some situations that do provide a modest tax benefit, most or all of that benefit is soaked up in fees by the donor-advised fund sponsoring organizations, such as Fidelity, Schwab, and Vanguard. Thus, donors need to better understand the potential costs and benefits of donor-advised funds.
Briton Jacob Myer (JD Candidate, Southern University Law Center) recently posted "In Pursuit of Religious Freedom: The RFRA and How It Applies to Non-Profit Organizations and Their Objections to the Accommodation of the Affordable Care Act Contraception Mandate" to SSRN:
The Hobby Lobby case decided by the Supreme Court back in 2014 determined the rights of for-profit corporations to refuse to provide certain contraceptives guaranteed by the Affordable Care Act in their employee’s health insurance plans. Hobby Lobby had argued their case under the three-part test of the Religious Freedom Restoration Act, claiming that the government-mandated provision of certain contraceptives substantially burdened its free exercise of religion. The Supreme Court with a narrow majority agreed with Hobby Lobby, finding a substantial burden existed due to Hobby Lobby’s limited options. In dicta, the Court noted the accommodation to the contraceptive mandate as a viable option to relieve Hobby Lobby of its substantial burden. This dicta gave birth to a new wave of contraceptive-mandate cases.
The Supreme Court will soon decide the new contraceptive-mandate issue in Zubik V. Burwell. As a consolidation of several cases, plaintiffs in this round of contraceptive controversy are all non-profit organizations who object on religious grounds not just to the contraceptive mandate but also to the accommodation process created for religious non-profit organizations by the government. This process requires the objecting non-profit to either notify by form the department of Health and Human Services (HHS) or, by form, notify its health-insurance provider.
These non-profit plaintiffs have the same argument as Hobby Lobby with a twist. They argue that the notification requirements make them complicit in the provision of the contraceptives that they find to be religiously abhorrent. In turn, the non-profits claim that once they notify either HHS or their insurance provider, they have essentially become facilitators of the provision of these contraceptives. Because they can either provide the coverage they find objectionable, give notification they find objectionable, or drop coverage and be subject to fines, the plaintiffs claim the government has placed a substantial burden on their exercise of religion. Thus, the question for the Court is whether a substantial burden is being imposed on the plaintiffs and if so has the government employed the least restrictive means of achieving its compelling interest in protecting the health of women. To answer the first question, this Article examines the historical interpretation by the Supreme Court of what constitutes a substantial burden since the RFRA’s enactment in 1993. This is critical in determining whether the plaintiffs will pass the first prong of the RFRA action and place the burden on the government to show its compelling interest and that it employed the least restrictive means. In answering the second question, this Article looks to the Hobby Lobby case discussion of least-restrictive means to determine if the government’s accommodation scheme will pass the least-restrictive-means test. With the recent death of Justice Scalia, these questions could go either way. The author believes this article gives insight into how the Court should and will decide to usher in this new era of RFRA litigation.
Lloyd Hitoshi Mayer (Notre Dame Law School) recently posted "Fragmented Oversight of Nonprofits in the United States: Does it Work? Can it Work?," 91 Chicago-Kent Law Review (forthcoming 2016) to SSRN:
The United States is well known for its distinctive although not unique division of political authority between the federal government and the various states. This division is particularly evident when it comes to oversight of nonprofit organizations. The historical focus of federal government oversight has been limited primarily to qualification for tax exemption and other tax benefits, with more plenary power resting with state authorities. Over time, however, the federal government’s role has come to overlap significantly with that of the states, and many nonprofits have become subject to regulation by multiple states as their operations and donor bases expand across state lines.
This Article draws on the growing literature addressing fragmentation of oversight in other contexts to identify possible advantages and disadvantages of such fragmentation with respect to nonprofits. It concludes that the current allocation of responsibilities between the states and the federal government, including the limited areas of overlap, results in relatively effective oversight given the resource and other constraints under which these governments operate. It further concludes, however, that there are certain areas where improvement is possible. More specifically, it recommends federal consolidation of information gathering and financing of oversight, increased coordination between the federal government and the states with respect to enforcement actions, and increased coordination among states with respect to regulation of charitable solicitations. It also recommends that the federal government should both halt and consider rolling back its encroachment into the legal requirements for governance of nonprofits as they relate to the primarily state law fiduciary duty of care.
Leandra Lederman (Indiana University Maurer School of Law) recently posted "IRS Reform: Politics as Usual," 7 Columbia Tax Journal (forthcoming 2016) to SSRN. Below is an abstract of Professor Lederman's article:
The IRS is still reeling from accusations that it “targeted” Tea Party and other non-profit organizations for delays of their applications for tax-exempt status. Although multiple government investigations found no politically motivated behavior — only mismanagement — Congressional hearings were quite inflammatory. Congress recently followed up those hearings with a set of IRS reforms. Congress’s approach is reminiscent of the late 1990s, when highly publicized Congressional hearings regarding alleged abuses by the IRS resulted in a major IRS reform and restructuring, although the allegations subsequently were largely debunked. This Article argues that the recent allegations against the IRS also were overblown. It looks to the aftermath of the 1998 IRS reform, which included a major downturn in enforcement, for lessons for the present day. The Article concludes that Congress as a whole can do a better job of keeping politics from undermining tax administration.
Thursday, March 24, 2016
French v. Comm’r—Conservation Easement Deduction Denied for Lack of Contemporaneous Written Acknowledgment
In French v. Comm'r, T.C. Memo. 2016-53, the Tax court sustained the IRS’s disallowance of more than $133,000 of carry-over deductions relating to a 2005 donation of a conservation easement to the Montana Land Reliance (MLR). Although the IRS challenged the deductions on a number of grounds, the Tax Court sustained the disallowance because the taxpayers failed to obtain a contemporaneous written acknowledgment of the donation from MLR as required by IRC § 170(f)(8)(A).
Contemporaneous Written Acknowledgment Requirements
The Tax Court explained the contemporaneous written acknowledgment (CWA) requirements as follows:
- pursuant to § 170(f)(8)(A), no deduction is allowed for a charitable contribution of $250 or more unless the contribution is substantiated with a CWA obtained from the donee organization;
- a CWA “need not take any particular form,” but it must meet the requirements of § 170(f)(8)(B), which requires that a CWA include:
- the amount of cash and a description (but not value) of any property other than cash contributed,
- whether the donee organization provided any goods or services in consideration, in whole or in part, for the property contributed, and
- a description and good faith estimate of the value of any such goods or services;
- the doctrine of substantial compliance does not apply to excuse compliance with the strict substantiation requirements of § 170(f)(8)(B) and, if a taxpayer fails to meet those requirements, the entire deduction is disallowed; and
- to be “contemporaneous,” § 170(f)(8)(C) requires that the taxpayer obtain the written acknowledgment on or before the earlier of (i) the date the return was filed or (ii) the due date (including extensions) for filing the return for the year in which the charitable contribution was made.
Because the taxpayers in French donated the conservation easement in 2005, they were required to obtain a written acknowledgment from MLR that was “contemporaneous” with their 2005 return and satisfied the requirements of § 170(f)(8)(B). The taxpayers had two “written acknowledgments” from MLR that might have qualified as CWAs: (i) a letter from an MLR representative dated June 6, 2006, stating that “no goods or services were furnished in respect of your easement donation” and (ii) the conservation easement deed, which was signed by a representative of MLR and recorded on December 29, 2005.
Letter from MLR Was Not "Contemporaneous"
The letter from MLR did not satisfy the CWA requirements because it was not obtained by the taxpayers on or before the date they filed their amended 2005 return. The taxpayers filed their amended 2005 return on or before April 15, 2006, but they did not obtain MLR’s letter until June of 2006, approximately two months later. Accordingly, the letter was not “contemporaneous” with their return.
Conservation Easement Deed Was Insufficient to Prove Donee Provided No Goods or Services
The conservation easement deed, which was signed by a representative of MLR and recorded in December of 2005, was “contemporaneous” with taxpayers’ amended 2005 return because it was obtained by the taxpayers before the date on which they filed that return. However, to comply with the “strict substantiation requirements” of § 170(f)(8)(B)(ii), a CWA must “state whether the donee organization provided goods or services in exchange for the donor’s charitable contribution.” The Tax Court found that the conservation easement deed in French did not satisfy this requirement.
The Tax Court explained that a conservation easement deed can satisfy the substantiation requirements of § 170(f)(8)(B)(ii) in two ways: (i) the deed contains a statement as to whether the donee provided goods or services for the contribution or, (ii) if the deed does not contain such an explicit statement, the deed as a whole contains sufficient information to allow the IRS to determine whether taxpayers received consideration in exchange for the contribution. The Tax Court cited Averyt v. Comm’r, T.C. Memo. 2012-198, and RP Golf, LLC v. Comm’r, T.C. Memo. 2012-282, as examples of deeds complying with the latter approach.
In both Averyt and RP Golf, LLC, the taxpayers claimed deductions for conservation easement donations and were permitted to rely on the easement deeds as CWAs even though neither deed stated whether the donee organization provided any goods or services in exchange for the donation. In Averyt, the deed stated that the easement was granted for the purpose of conservation and that the deed was the entire agreement of the parties. In RP Golf, LLC, the deed stated that the easement was made “in consideration of the covenants and representations contained herein and for other good and valuable consideration”; but the deed did not include any consideration of any value other than the preservation of the property. The deed in RP Golf, LLC, also stated that it was the entire agreement of the parties. In both cases, the Tax Court held that the deeds, “taken as a whole,” proved compliance with § 170(f)(8)(B)(ii). Accordingly, when a conservation easement deed does not explicitly state whether the donee provided goods or services in exchange for the donation, the deed, taken as a whole, must prove compliance with § 170(f)(8)(B)(ii), and factors that support compliance are that (i) the deed recites no consideration received from the donee other than the preservation of the property and (ii) the deed contains a provision stating that the deed is the entire agreement of the parties. According to the Tax Court, that information allows the IRS to conclude that a taxpayer did not receive any consideration for the contribution and correctly reported his or her charitable contribution.
In French, the conservation easement deed did not state whether the donee provided goods or services in exchange for the charitable contribution. In addition, although the deed included provisions stating that the intent of the parties was to preserve the property, those provisions did not confirm that the preservation of the property was the only consideration provided by MLR in exchange for the donation because the deed did not include a provision stating that it was the entire agreement of the parties. “Without such a provision,” said the Tax Court, “the IRS could not have determined by reviewing the deed whether taxpayers received consideration in exchange for the contribution of the easement.” Accordingly, the deed, taken as a whole, was insufficient to satisfy § 170(f)(8)(B)(ii), and failure to comply with that section was fatal to the claimed deductions. To justify the seeming harshness of this rule, the Tax Court cited to Addis v. Commissioner, 374 F.3d 881, 887 (9th Cir. 2004), in which the 9th Circuit explained that “[t]he deterrence value of section 170(f)(8)’s total denial of a deduction comports with the effective administration of a self-assessment and self- reporting system.”
Although the IRS also argued that the taxpayers in French did not have an ownership interest in the underlying property (because the easement donation was made through trusts) and overvalued the easement, the Tax Court did not address those issues.
Nancy A. McLaughlin, Robert W. Swenson Professor of Law, University of Utah S.J. Quinney College of Law
Friday, March 18, 2016
Mark Loewenstein (Colorado) offered thoughtful comments today on Colorado's adoption of a benefit corporation statute as part of The 29th Annual Corporate Law Center Symposium at The University of Cincinnati College of Law. He has memorialized some of his view on benefit corporations in an article that he recently posted on SSRN, which is entitled, Benefit Corporations: A Challenge in Corporate Governance. The article originally appeared in a 2013 issue of the The Business Lawyer and is well worth a read. The abstract states the following:
Benefit corporations are a new form of business entity that is rapidly being adopted around the country. Though the legislation varies from jurisdiction to jurisdiction, most statutes are based on a model proposed and promoted by B Lab, itself a nonprofit corporation. The essence of these statutes is that, in making business judgments, the directors of a benefit corporation must consider the impact of their decisions on the environment and society. The model legislation, though, may create serious governance issues for the directors of benefit corporations that operate under these laws. This article analyzes the model legislation and identifies its weaknesses, particularly with respect to governance issues.
-- Eric C. Chaffee
Wednesday, March 16, 2016
Indranil Goswami (Chicago School of Business) and Oleg Urminsky (Chicago School of Business) have posted When Should the Ask Be a Nudge? The Effect of Default Amounts on Charitable Donations on SSRN with the following abstract:
How does setting a donation option as the default in a charitable appeal affect people’s decisions? In eight studies, comprising 11,508 participants making 2,423 donation decisions in both experimental settings and a large-scale natural field experiment, we investigate the effect of “choice-option” defaults on the donation rate, average donation amount, and the resulting revenue. We find (1) a “lower-bar” effect, where defaulting a low amount increases donation rate, (2) a “scale-back” effect where low defaults reduce average donation amounts and (3) a “default-distraction” effect, where introducing any defaults reduces the effect of other cues, such as positive charity information. Contrary to the view that setting defaults will backfire, defaults increased revenue in our field study. However, our findings suggest that defaults can sometimes be a “self-cancelling” intervention, with countervailing effects of default option magnitude on decisions and resulting in no net effect on revenue. We discuss the implications of our findings for research on fundraising specifically, for choice architecture and behavioral interventions more generally, as well as for the use of “nudges” in policy decisions.
-- Eric C. Chaffee
Tuesday, March 15, 2016
One of the challenges of teaching about nonprofits is finding reliable and useful data regarding the sector. The National Council of Nonprofits has compiled a collection of Research, Reports, and Data on the Nonprofit Sector, which should be enough to make any quant's mouth water.
-- Eric C. Chaffee
Monday, March 14, 2016
Gao Liu (Florida Atlantic University) posted Government Decentralization and the Size of the Nonprofit Sector: Revisiting the Government Failure Theory on SSRN with the following abstract:
This article revisits government failure theory by examining the relationship between government decentralization and the size of the nonprofit sector (NPS). Government failure theory posits that nonprofits are most active in regions where the largest gap exists between the homogeneous supply of public service and heterogeneous citizen demands. Following this theory, government decentralization should decrease the size of the NPS, as it increases the efficiency and heterogeneity of government services. This article tests this hypothesis using a sample of U.S. counties. Decentralization is measured in two dimensions: vertical decentralization and horizontal fragmentation. After using instrumental regressions to eliminate the endogeneity bias, we find that counties with a more horizontally fragmented governmental system are associated with a larger NPS. Vertical centralization leads to a denser NPS but has no impact on the NPS revenue or assets. The impacts of resident heterogeneity are also mixed. As such, government failure theory is only partially supported, at best. Contrarily, interdependence theory is supported by this study.
-- Eric C. Chaffee