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
Sunday, March 13, 2016
The most recent challenge to the free exercise of religion is here. And while it stems from the same legislation that prompted the action in Burwell v. Hobby Lobby Stores, Inc. — the contraception mandate under the Patient Protection and Affordable Care Act (the “ACA”) — it raises unique and equally important issues: what constitutes a substantial burden on the exercise of religion and who gets to decide (the religious adherents or the courts). In Hobby Lobby, the government contended that for-profit corporations could not exercise religion and, consequently, could not avail themselves of the broad protection afforded free exercise under the Religious Freedom Restoration Act. In the seven religious nonprofit cases pending before the United States Supreme Court, the government acknowledges that RFRA applies to religious nonprofits but now alleges that the ACA does not substantially burden the free exercise of these religious organizations. In particular, the government argues that the accommodation to the contraception mandate (which permits religious nonprofits to avoid directly providing coverage for all FDA-approved contraceptives and sterilization procedures by giving notice to their insurance issuers or third party administrators that the religious organizations object to providing such coverage) does not burden, let alone substantially burden, the religious nonprofits’ exercise of religion.
To date, eight circuit courts of appeals have sided with the government, instructing the religious nonprofits that their sincerely held belief — that the accommodation makes them complicit in a grave moral wrong (i.e., the provision of contraceptives and abortifacients) — is incorrect because the ACA, not any actions by the religious nonprofits, is the legal cause of the insurance issuers’ and TPAs’ obligation to provide such coverage. Under the majority’s “Pontius Pilate” defense, the accommodation “washes the hands” of religious nonprofits, cleansing them of any legal or moral responsibility for providing the objectionable coverage. As a result, the religious nonprofits cannot meet their burden under RFRA because the accommodation does not substantially burden their exercise of religion. Only the Eighth Circuit has ruled for the religious nonprofits. The Supreme Court’s resolution of the circuit conflict, therefore, will impact the scope of free exercise protection far beyond the ACA context by deciding whether courts or religious practitioners have the right to determine when government-mandated actions actually contravene sincerely held religious beliefs.
This article contends that the circuit court majority is wrong. Contrary to the majority’s claim, Hobby Lobby and Holt v. Hobbs preclude courts from deciding whether the ACA (or any other statute) actually burdens a religious adherent’s sincerely held beliefs. Although, as Chief Justice Marshall famously declared, “it is emphatically the province and duty of the judicial department to declare what the law is,” courts lack the authority and competence to declare what the religious commitments of a faith are and when those commitments are violated. Under the Court’s free exercise precedents, courts can determine only whether the government puts a religious practitioner to the choice of engaging in conduct that violates her beliefs or of disobeying the government’s policy and facing “serious” consequences. Religious and philosophical questions regarding moral complicity are left to religious adherents, not the courts. As the Founders recognized, religious and moral questions transcend the legal, imposing a different — and higher — obligation on religious believers. For religious adherents, only God (through a religious authority determined in accordance with their sincere religious beliefs) can determine whether an action makes them complicit in sin. Consequently, as the Court explained in Hobby Lobby, “question[s]” about moral complicity are ones “that the federal courts have no business addressing.”
-- Eric C. Chaffee
Wednesday, March 9, 2016
When does an alleged zoning violation justify automatic removal of a property's tax-exempt status? New York State Supreme Court --Appellate Division, Second Department, recently had the opportunity to review the issue.
In Community Assn., Inc. v. Town of Ramapo, 2016 NY Slip Op 01458, 2nd Dept 3-2-16, the Second Department, reversing the trial court, determined that an alleged violation, for which the property owner had never been cited, did not justify the automatic removal of the property's tax-exempt status. The property had been tax-exempt for years as low-income property. The court found that the alleged zoning violation -- that the property owner had more than two residential apartments -- was not incompatible with the tax-exempt use. Therefore, the court held, the alleged zoning violation could not justify automatic removal of the tax-exempt status. Said the court:
[E]ven assuming that a zoning violation had been sufficiently established, the defendants have failed to articulate why such a violation, under the particular circumstances presented, should result in loss of the plaintiff's tax exemption. Not all violations of law automatically result in the loss of a tax exemption ... . 'The concern of the taxing authority is not with the observance or non-observance by plaintiff of regulatory provisions relating to a specific building, but to the use to which the real property as an entity is or is intended to be devoted' ... . This is not a case in which the applicable zoning regulation is incompatible with the occupant's tax-exempt use ... . In such cases, the rationale for denying the tax exemption is simple and clear, as compliance with both the tax-exempt use and the zoning regulation is impossible. Here, by contrast, the tax-exempt use of providing residential housing to low-income tenants is consonant with the property's permitted use as a two-family dwelling. Under these circumstances, the defendants have failed to establish, prima facie, that the nature of the alleged violation (i.e., that the plaintiff had more than two residential apartments) can serve as a valid legal basis for denying the property tax exemption ...".
So to answer the question with which we started, When does a zoning violation justify automatic removal of a property's tax-exempt status? New York's Second Department is clear: When the applicable zoning regulation is incompatible with the property occupant's tax-exempt use.
Tuesday, March 8, 2016
The NonProfit Times is reporting that under a tax proposal put forth by Democratic presidential hopeful Hillary Clinton, the charitable deduction would be exempt from a 28-percent deduction cap and the estate tax exclusion would return to 2009 levels.
According to the Times:
The tax benefit from specified deductions and exclusions would be limited to 28 percent. The cap would apply to all itemized deductions except charitable contributions but would reduce the value of deductions and exclusions for taxpayers in the 33 percent and higher tax brackets.
The proposals also would permanently reduce the tax threshold for estate taxes to $3.5 million ($7 million for married couples) with no adjustment for inflation, increase the top tax rate to 45 percent, and set the lifetime gift tax exemption at $1 million. In 2015, the basic exclusion for the estate tax is $5.45 million and Clinton’s plan would return it back to 2009 levels.
Friday, March 4, 2016
Jonathan Backer (Michigan '15) has published Thou Shalt Not Electioneer: Religious Nonprofit Political Activity and the Threat "God PACs" Pose to Democracy and Religion, 114 Mich. L. Rev. 619 (2016). Here is the abstract:
The Supreme Court’s 2010 decision in Citizens United v. FEC invalidated a longstanding restriction on corporate and union campaign spending in federal elections, freeing entities with diverse political goals to spend unlimited amounts supporting candidates for federal office. Houses of worship and other religious nonprofits, however, remain strictly prohibited from engaging in partisan political activity as a condition of tax-exempt status under Internal Revenue Code § 501(c)(3). Absent this “electioneering prohibition,” religious nonprofits would be very attractive vehicles for political activity. These 501(c)(3) organizations can attract donors with the incentive of tax deductions for contributions. Moreover, houses of worship need not file with a government agency to begin operating and deriving tax benefits, and the IRS has shown reluctance to aggressively audit their activities. Two circuits have previously upheld the electioneering prohibition against legal challenges, but recent jurisprudential shifts expose the tax code provision to challenge under the Religious Freedom Restoration Act (RFRA), which directs courts to apply strict scrutiny to facially neutral laws that substantially burden the free exercise of religion. First, Burwell v. Hobby Lobby Stores, Inc. greatly reduced the barriers to successful RFRA claims. Second, by lifting restrictions on political speech for many other types of organizations, Citizens United magnified the burden the electioneering prohibition imposes on religious organizations. The decision also rejected compelling state interests that might have previously shielded the law from invalidation. This Note is the first analysis of the electioneering prohibition’s vulnerability in this new legal climate. Despite these significant developments, this Note ultimately concludes that the electioneering prohibition can survive RFRA challenges because the prospect for widespread use of religious organizations as conduits for political activity undermines the values reflected in Establishment Clause jurisprudence.
Ellen Aprill (Loyola L.A.) has published The Section 527 Obstacle to Meaningful Section 501(c)(4) Regulation, 13 Pitt. Tax Rev. 43 (2015). Here is the abstract:
Antonio Fici (European Research Institute on Cooperative & Social Enterprise) has posted on SSRN Recognition and Legal Forms of Social Enterprise in Europe: A Critical Analysis from a Comparative Law Perspective. Here is the abstract:
Social enterprise lawmaking is a growth industry. In the United States alone, over the last few years, there has been a proliferation of state laws establishing specific legal forms for social enterprises. The situation is not different in Europe, where the process began much earlier than in the United States and today at least fifteen European Union member states have specific laws for social enterprise. This article will describe the current state of the legislation on social enterprise in Europe, inquiring into its fundamental role in the development of the social economy and its particular logics as distinct from those of the for-profit capitalistic economy. It will explore the models of social enterprise regulation that seem more consistent with the economic growth inspired by the paradigms of the social economy. It will finally explain why, in regulating and shaping social enterprise, the model of the social enterprise in the cooperative form is to be preferred to that of the social enterprise in the company form.
James Fishman (Pace) has published Who Can Regulate Fraudulent Charitable Solicitation?, 13 Pitt. Tax Rev. 1 (2015). Here is the abstract:
The scenario is common: a charity, typically with a name including an emotional word like “cancer,” “children,” “veterans,” “police,” or “firefighters,” signs a contract with a professional fundraiser to organize and run a campaign to solicit charitable contributions. The charity may be legitimate or a sham. The directors of the charity may be allied or coconspirators with the fundraiser, or as likely, well-meaning but naïve individuals. The fundraiser raises millions of dollars through telemarketing, Internet, or direct mail solicitation. The charity receives but a small percentage of the amount. In some cases, at the close of the campaign, the organization owes the solicitor more than the amount raised for the charity. Thereafter, the state attorney general investigates the charity and finds fraud in the solicitation or an improper use of the funds raised. As part of the settlement, the professional solicitor agrees to be barred from operating in that particular state. Thereafter, the fundraiser moves to a neighboring jurisdiction, opens business (perhaps under a different name), and commences the same cycle of fraudulent fundraising using another charity
Deception in solicitation and misuse of monies raised for charitable purposes is not only a fraud on the donor; it also can be a diversion of tax dollars from state or federal treasuries. This article examines several approaches for regulating unscrupulous professional fundraisers and preventing carpetbagging, moving from jurisdiction to jurisdiction, committing fraud, or willfully violating regulatory requirements. It examines limitations in the existing regulatory framework to prevent charity fraud and offers possible solutions to the problem. As a first solution, the Internal Revenue Service should revitalize and extend the “private benefit doctrine” as a tool of enforcement. Second, Congress and the Service should amend § 4958 to address excess benefit transactions to more clearly include unscrupulous solicitors. A third possible resolution to the problem outlined would be the expansion of the Federal Trade Commission’s enforcement authority to cover charitable solicitation generally. Currently, the FTC has authority over telemarketing by for-profit fundraisers.3 The legislation proposed would enable the creation of a self-regulatory organization under Federal Trade Commission aegis that fundraisers would be required to join. This new organization would enforce norms and rules for professional fundraisers, have the authority to discipline and, if necessary, to bar dishonest fundraisers from the fundraising industry. A final recommendation is the creation of an online, readily accessible database containing records of violations of professional fundraising companies and the individuals who own and work for them, the contracts between professional solicitors and the charities they work for, the results of fundraising campaigns listing the percentage of dollars raised that goes to the charity, and the texts of settlement agreements between state charity officials and fundraisers and the charities involved. An important issue not addressed in detail is the fiduciary responsibility of charity boards to carefully select the firms that manage their solicitation campaigns.
Miranda Perry Fleischer (San Diego) has published on SSRN How is the Opera Like a Soup Kitchen, The Philosophical Foundations of Tax Law (Oxford University Press, forthcoming 2016). Here is the abstract:
The charitable tax subsidies are, at heart, redistributive. Some individuals (the recipients of charitable goods and services, such as students, museum-goers, and soup kitchen patrons) receive benefits. Other individuals pay for these benefits, both voluntarily (through donations) and involuntarily (in the form of higher taxes or reduced benefits). At first glance, it appears that the redistribution effectuated by the subsidies violates commonly-held notions of distributive justice. After all, the subsidies treat charities that serve the wealthy (like the opera) the same as charities that aid the poor (such as the soup kitchen). How can spending public funds on the wealthy in this manner be considered just? As this Chapter shows, so doing is just under expansive interpretations of resource egalitarianism and left-libertarianism that account for expensive tastes and talent-pooling. These understandings argue that individuals with expensive tastes deserve compensation to put them on equal footing with individuals with ordinary tastes when pursuing their visions of the good life – just as individuals who lack financial resources deserve compensation to put them on equal footing with the financially-advantaged when pursuing their life plans. Subsidizing not only the soup kitchen but also the opera thus helps a variety of individuals who are disadvantaged in their ability to pursue their visions of a good life to achieve those visions.
Philip Hackney (LSU) has published Charity Organization Oversight: Rules v. Standards, 13 Pitt. Tax Rev. 83 (2015). Here is the abstract:
Congress has traditionally utilized standards as a means of communicating charitable tax law in the Code. In the past fifteen years, however, Congress has increasingly turned to rules to stop fraud and abuse in the charitable sector. I review the rules versus standards debate to evaluate this trend. Are Congressional rules the best method for regulating the charitable sector? While the complex changing nature of charitable purpose would suggest standards are better, the inadequacy of IRS enforcement and the large number of unsophisticated charitable organizations both augur strongly in favor of rules. Congress, however, is not the ideal institution to implement rules for charitable purpose. The IRS is the better institution generally to institute rules there because of its informational advantage over Congress. Additionally, the IRS can implement rules in a more flexible rule format than can Congress. Still, Congress as a rulemaker makes sense in a few scenarios: (1) where it implements transparent procedural requirements; (2) where it regulates discrete behavior of charitable organization acts; and, (3) where it intends to remove a set of organizations from charitable status through simple rules.
Kristine Knaplund (Pepperdine) has published Becoming Charitable: Predicting and Encouraging Charitable Bequests of Wills, 77 Pitt. L. Rev. 1 (2015). Here is the abstract from the SSRN posting of the article:
What causes people to leave their property to charity in their wills? Many scholars have explored the effects of tax laws on charitable bequests, but now that more than 99% of Americans’ estates are exempt from federal taxes, what non-tax factors predict charitable giving? This Article explores charitable bequests before the federal estate tax and a deduction for charitable bequests were enacted by Congress. By examining two years of probate files in Los Angeles and St. Louis, in which 16.6% of St. Louis testators, but only 8.3% in Los Angeles, made charitable bequests, we can begin to discern why testators in St. Louis were far more inclined to give to charity. The surprising results may help policy makers encourage those in the United States and in developing countries to give beyond their family and friends.
This Article is unique in that it is the first to examine not just whether a will included a charitable bequest, but whether the charity received it. This crucial information adds key insights to who gives to charity. In fact, if we compare the two cities by looking at charitable bequests which were actually received, St. Louis testators are even farther ahead of their Los Angeles counterparts, with 15% of St. Louis testators giving to charity compared to 6% in LA.
By examining hundreds of wills executed before the federal estate tax was enacted, we can see patterns for the vast majority of people who die with estates far too small to be impacted by the estate tax. Five clear steps emerge to ensure that testators will give to charity.
Michael McConnell (Stanford) and Luke Goodrich (Becket Fund for Religious Liberty; Utah) have posted on SSRN On Resolving Church Property Disputes, Arizona Law Review (forthcoming). Here is the abstract:
In recent decades, major religious denominations have experienced some of the largest schisms in our nation’s history, resulting in a flood of church property disputes. Unfortunately, the law governing these disputes is in disarray. Some states treat church property disputes just like disputes within other voluntary associations — applying ordinary principles of trust and property law to the deeds and other written legal instruments. Other states resolve church property disputes by deferring to religious documents such as church constitutions — even when those documents would have no legal effect under ordinary principles of trust or property law.
We argue that both courts and churches are better served by relying on ordinary principles of trust and property law, and that only this approach is fully consistent with the church autonomy principles of the First Amendment. Only this approach preserves the right of churches to adopt any form of governance they wish, keeps courts from becoming entangled in religious questions, and promotes clear property rights. By contrast, deferring to internal religious documents unconstitutionally pressures churches toward more hierarchical governance, invites courts to resolve disputes over internal church rules and practices, and creates costly uncertainty.