Friday, May 1, 2015
The season for introducing recent scholarship to the world is upon us, and scholars of nonprofits law have been busily posting their work to SSRN. This blog entry features abstracts of SSRN postings to the Nonprofit & Philanthropy Law eJournal over the past ten days.
Eric A. Lustig of New England Law on Boston PILOTs (two postings):
This article will address two specific developments in the PILOT program. First, the PILOT Task Force issued its final report in December, 2010. Second, the Lincoln Institute of Land Policy published a comprehensive report in the fall of 2010.
This article examines the first three years of results under the revised Boston Payment-in-Lieu of Taxes (PILOT) Program. The article updates two previous articles on the proposals and roll-out of the program. The revised Boston program and these results continue to be significant for several reasons. First, the Boston program is a long-standing one which is acknowledged as a national leader. Second, the creation of the task force and its resulting recommendations reflected a collaborative and transparent process. Finally, PILOT programs, particularly in the northeast, are an increasingly popular and controversial revenue producing source for local governments. The article concludes that the revised Boston program has led to a broader base of contributions from the Boston nonprofit community. The overall effectiveness of the changes may be limited by the voluntary basis of the program and the non-monolithic nature of the Boston nonprofit community.
Miranda Perry Fleischer of University of San Diego School of Law on Charity Tax Subsidies:
Tax scholarship is largely silent about the interaction between libertarian principles and the structure of our tax system. If all taxation is indeed slavery, as Nozick suggested, why bother analyzing libertarianism for insights into our tax system? This dismissal, however, ignores the diversity of libertarian thought. To that end, this Article mines the nuances of libertarian theory for insights into one feature of our tax system: the charitable tax subsidies.
One strand of libertarianism suggests that the charitable tax subsidies are in and of themselves illegitimate. Yet several other understandings of libertarianism see a role for the state to engage in a varying amount of redistribution or to provide varying amounts of public goods. One reading of minimal state libertarianism, for example, suggests that only charities that help the very poor should be subsidized, while another implies that only organizations assisting individuals who have been harmed by past injustices should be subsidized. A strict reading of classical liberalism suggests that groups providing public goods should be subsidized regardless of whether they assist the poor, but would likely narrow the definition of what counts as a public good suffering from market failure. Only a more lenient interpretation of classical liberalism that conceives of a vibrant nonprofit sector as a public good in and of itself and an expansive reading of left-libertarianism support something akin to our current structure, in which elite cultural institutions such as the opera are subsidized even if they provide no free or discounted services to the poor.
Jacqueline R. Moss on the Charitable Contributions Deduction:
Ostensibly, the purpose of the tax code is to raise revenue. But the tax code, like most laws, the United States tax code is a tool for social engineering, for better or for worse. Laws function not just to create stability, establish rules, or enshrine moral values; laws provide incentives for obeying the rules and disincentives for breaking them. The tax code, perhaps more than other body law, explicitly encourages and rewards behavior deemed valuable by society with tax credits and tax deductions while discouraging undesirable behavior through tax rates and the withholding of credits and deductions.
The tax code is the instrument through which government drives investment in economic activities deemed valuable, like research and development, education, small-business, and the nonprofit sector. The merit of using the tax code as a method for social engineering is not the subject of this article, but it is necessary to understand that whether one agrees or not with this use of the code, it is how it functions. Because the tax code functions to raise revenue and a policy tool, tax credits, deductions, and subsidies are frequently evaluated to determine if they are efficient – that is, do they work? Because if these tax incentives don’t work, they end up costing the government – and tax payers – a great deal of money with little to no benefit.
The creation of the individual charitable tax deduction exemplifies the debate over efficiency and the social engineering function of the tax code. The charitable deduction was created and lives on because we, through our representatives in Congress who author the tax code, have deemed charitable donations as socially and morally valuable, and thus as behavior that should be encouraged and rewarded. However, the deduction was created not only to reward and encourage charitable giving, but also to provide tax relief to wealthy Americans. The charitable tax deduction, quite intentionally, doesn’t recognize the charitable donations of all those who donate. Indeed, the charitable deduction – by design – tends to recognize and reward the charitable donations of high income individuals. In fact, as ones’ income rises, so does the value of the charitable deduction. Rewarding the wealthy but not lower-income individuals’ for their charitable contributions raises serious questions about the efficiency and equity of the charitable deduction. Surely, if the vast majority of Americans give to charity, and we, as a society, value and wish to encourage, reward, and maximize charitable giving, shouldn’t the tax code recognize the contributions of all taxpayers?
This article seeks to answer some of the questions raised by the purpose and function of the charitable tax deduction. In part one I will summarize the impact and role of the nonprofit sector and the impact of the charitable deduction upon that sector on the United States economy. Part two will examine the history and purpose of the charitable deduction and how the provision evolved since its creation in 1917. Part three will review how the charitable currently deduction functions. Part four will examine the inequity of the deduction in its treatment of similarly-situated taxpayers. Part five will explore the motivation – economic and otherwise – for donating to charity as well as the benefit of subsidizing nonprofits. Part six will examine various proposals for reform, the predicted effect of such reforms, and options to potentially maximize charitable giving among all income levels and increase equity.
Joseph Mead of Cleveland State University and Michael Pollack on Fiduciary Duties:
Directors of nonprofit organizations owe fiduciary duties to their organization, but the content of these duties -- and how and when courts should enforce these duties -- has long been debated among scholars and courts. This debate emerges in several areas, including the level of deference to be shown by courts to nonprofit directors (the business judgment rule), who should be allowed to sue to enforce duties (standing), and the type of relief available to prevailing plaintiffs (remedies). Existing literature debates these legal rules in isolation and in abstraction, generally failing to consider how the rules interact with each other and ignoring the empirical reality of the nonprofit sector.
Because for-profit and nonprofit corporations evolved from a common ancestor, courts generally apply the corporation law principles developed in the context of for-profit corporations to nonprofit corporations as well. But for-profit and nonprofit corporations often differ in key ways, including sources of income, constituencies, and other institutional characteristics. These differences make rote application of corporation law principles to nonprofit corporations a conceptually questionable endeavor. Rather than setting nonprofit rules through strained analogies to for-profit concepts of ownership and profit-maximization, we propose an employing an analysis of institutional features that can operate in a whole range of governance contexts, including the nonprofit sector. This approach rigorously considers opportunities for voice and exit, impact range, homogeneity, and comparative competence between boards and courts, and it does so among different types of nonprofit actors, like directors, members, employees, donors, customers, and beneficiaries.
Using this institutional analysis with for-profit corporation law as the baseline, we compare emerging legal rules in the nonprofit sector against existing empirical literature. We find that, with one exception, institutional characteristics vis-à-vis nonprofit actors are reasonably comparable to their for-profit counterparts, and we therefore place the applicable legal regime with respect to those actors on a more conceptually sound footing. In contrast, beneficiaries of a nonprofit organization tend to lack opportunities for exit or voice, face risk of considerable deprivation, and often differ considerably in relevant aspects from the individuals who manage the organization. We argue that the law should take into account the limited power of beneficiaries in nonprofit governance structures, and we analyze options for reform.
Fiona Martin of the Australian School of Business, UNSW on the Charities Act 2013:
In 2013, the Charities Act 2013 (Cth) was enacted and it came into effect on 1 January 2014. This is the first time that there has been an enactment of a statutory definition of the legal concept of “charity” in Australia. The definition is important for many areas of personal and commercial life, however one of the most significant, at least from a legal point of view, is how this definition operates in the context of Australian taxation law. This is particularly relevant in view of the fact that charities are exempt from income tax and subject to many other tax concessions at federal, state and local government level. Under Australian common law, a charitable entity was required to have a charitable purpose and be of benefit to the public. This article introduces the statutory definition and how it confirms the common law definition of charity and charitable purpose in certain instances, but also amends and expands these concepts. This discussion is provided as a context for the analysis of how the issue of public benefit has been dealt with under the statute. The article concludes with an analysis of how the Act has amended the application of the public benefit test to recipients of payments in respect of native title and traditional Indigenous lands.
Sunday, March 22, 2015
- Pamela Wicker, Neil Longley, and Christoph Breuer, Revenue Volatility in German Nonprofit Sports Clubs
- Wei-Wen Chang, Chun-Mam Huang, and Yung-Cheng Kuo, Design of Employee Training in Taiwanese Nonprofits
- Joseph Lanfranchi and Mathieu Narcy, Female Overrepresentation in Public and Nonprofit Sector Jobs: Evidence From a French National Survey
- Tracey M. Coule, Nonprofit Governance and Accountability: Broadening the Theoretical Perspective
- Daniela Casale and Anna Baumann, Who Gives to International Causes? A Sociodemographic Analysis of U.S. Donors
- Alasdair C. Rutherford, Rising Wages in the Expanding U.K. Nonprofit Sector From 1997 to 2007
- Daniel W. Curtis, Van Evans, and Ram A. Cnaan, Charitable Practices of Latter-day Saints
- Stephan Grohs, Katrin Schneiders, and Rolf G. Heinze, Social Entrepreneurship Versus Intrapreneurship in the German Social Welfare State: A Study of Old-Age Care and Youth Welfare Services
- Steven Reesor Rempel and
- Christopher T. Burris,
- Personal Values as Predictors of Donor- Versus Recipient-Focused Organizational Helping Philosophies
- Patricia Tweet, Book Review: Nonprofit governance: Innovative perspectives and approaches by C. Cornforth and W. A. Brown (Eds.)
- Hans Peter Schmitz,
Book Review: Importing democracy: The role of NGOs in South Africa, Tajikistan, and Argentina by J. Fisher
- Susan M. Chambré, Book Review: Doctors without borders: Humanitarian quests, impossible dreams of Médicins Sans Frontières by R. C. Fox
Mary Crossley (Pittsburgh) has posted Health and Taxes: Hospitals, Community Health and the IRS on SSRN. Here is the abstract:
The Affordable Care Act created new conditions of federal tax exemption for nonprofit hospitals, including a requirement that hospitals conduct a community health needs assessment (CHNA) every three years to identify significant health needs in their communities and then to develop and implement a strategy responding to those needs. As a result, hospitals must now do more than provide charity care to their patients in exchange for the benefits of tax exemption, and the CHNA requirement has the potential both to prompt a radical change in hospitals’ relationship to their communities and to enlist hospitals as meaningful contributors to community health improvement initiatives. Final regulations issued in December 2014 clarify hospitals’ obligations under the CHNA requirement, but could do more to facilitate hospitals’ engagement in collaborative community health projects. The IRS has a rich opportunity, while hospitals are still learning to conduct CHNAs, to develop guidance establishing clear but flexible expectations for how they assess and address community needs. This Article urges the IRS to seize that opportunity by refining its regulatory framework for the CHNA requirement to more robustly promote transparency, accountability, community engagement, and collaboration, while simultaneously leaving hospitals a good degree of flexibility. By promoting alignment between hospitals’ regulatory compliance activities and broader community health improvement initiatives, the IRS could play a meaningful role in efforts to reorient our system towards promoting health and not simply treating illness.
Wednesday, March 18, 2015
Mueller: An Argument for Continued Use of Standards to Evaluate the Campaign Activities of 501(c)(4) Organizations
Jennifer Mueller (American) has published "Defending Nuance in an Era of Tea Party Politics: An Argument for the Continued Use of Standards to Evaluate the Campaign Activities of 501(c)(4) Organizations," 22 George Mason Law Review 103 (2014). The following excerpt is from the introduction (citations omitted):
As this Article shows below, many of these premises are true: this is a complex area of law, and under the current system the agency’s final determination is, at the margins, unpredictable. When it comes to both tax and campaign finance, there will always be individuals seeking to circumvent the law. And certainly the public should be concerned for the robustness of the entire system. But all of these considerations counsel for retaining, with some modifications, the IRS’s standards-based approach to policing the campaign intervention line. They certainly do not support the contention that bright-line rules will markedly improve compliance or reduce the level of political participation by newly formed social welfare groups. Moreover, notwithstanding the political appeal of anti-IRS rhetoric, constraining the agency’s discretion in these cases will help no one but private actors looking for loopholes.
This Article reaches this conclusion through two independent lines of analysis. The first is largely theoretical. It examines the characteristics of rules—where the content of a legal command is provided ex ante—and standards—where the exact contours are determined as applied to a concrete set of facts ex post—as set out in legal scholarship over the last several decades. Following the lead of Professor Ellen Aprill, who recently conducted a similar inquiry with regard to 501(c)(3) charitable organizations but reached a different conclusion, this Article relies on the comprehensive framework set out by Professor Louis Kaplow in his article “Rules Versus Standards: An Economic Analysis.”
The second line of analysis is based on the observed effects of brightline rules in the parallel regime of campaign finance law. Campaign finance is an obvious choice for comparison for several reasons. First, many of the concerns and considerations set forth above, including complexity and circumvention, apply with equal force in the campaign finance arena. Second, it is a natural foil: the Federal Election Campaign Act (“FECA”) is increasingly administered through bright-line rules. Finally, many of those calling for reform of Section 501(c)(4) are motivated by concerns about the evasion of existing campaign finance laws, so there is a practical appeal to testing the hypothesis that rules in this area would be more effective.
Thursday, March 5, 2015
Readers interested in a non-inflammatory piece on the Tea Party controversy should take a look at "Citizens United Spurs Social Welfare," published in Tax Notes Today (subscription required) and authored by Jasper L. Cummings, Jr. Jack is legal counsel in the Federal Tax Group of Alston & Bird and has an impressive record of legal service, including academic service as an acting assistant professor of tax at NYU and as a visiting professor of law at my home school, the University of Houston Law Center. In the article, Jack discusses the predictable rise in the use of social welfare organizations following Citizens United, and offers a measured perspective reflecting willingness to consider the best intentions of the Internal Revenue Service in regulating section 501(c)(4) entities in the wake of Citizens United.
In the piece, Jack presents a “short summary” of his article advancing the following points:
(1) To “expect an explosion of independent expenditures on federal elections after Citizens United” was reasonable.
(2) To expect that section 501(c)(4) entities “would receive a significant amount in additional contributions for such spending” was also reasonable.
(3) The new level of funding politically oriented 501(c)(4)s “could be so different in quantity that it would explain and justify a new look at the woefully inadequate published tax guidance for those organizations, and, in the meantime, at the administration of the tax law as it existed.”
(4) “We know now that the IRS did not carry out that new look in the right way,” but because of the “politically charged” nature of the relevant issues, “it is reasonably possible that the new look itself might have been a proper response to changing circumstances, as opposed to evidence of political bias.”
Electronic cite: 2015 TNT 43-10
Tuesday, February 17, 2015
Alexander, "Benefit Corporations-The Latest Development in the Evolution of Social Enterprise: Are They Worthy of Taxpayer Subsidy?"
H/t the mothership at Tax Prof Blog:
Mystica M. Alexander, "Benefit Corporations-The Latest Development in the Evolution of Social Enterprise: Are They Worthy of Taxpayer Subsidy?", 38 Seton Hall Legis J. 219 (2014):
The purpose of this Article is twofold: (1) placing the Benefit Corporation within the historical context of the social enterprise movement in the United States, and (2) considering whether Benefit Corporations should qualify for the preferred tax treatment given to nonprofit organizations. Part II of this Article explores the evolution of the social enterprise movement and the path leading to the hybrid entity’s rise in the United States. Part III provides a closer look at the legal requirements imposed on Benefit Corporations. Part IV outlines the requirements that must be met for a nonprofit organization to qualify for tax benefits and the rationale behind such benefits. Part V addresses whether the tax benefits made available to nonprofit organizations should be extended to Benefit Corporations. This Article concludes that although the Benefit Corporation represents a natural progression in the evolution of social enterprise, its organizational and operational structure does not provide sufficient grounds for extending special tax treatment to these organizations.
Friday, February 6, 2015
Fran Quigley (Indiana University Robert H. McKinney School of Law) has posted For Goodness’ Sake: A Two-Part Proposal for Remedying the U.S. Charity/Justice Imbalance on SSRN. Here is the abstract:
The U.S. approach to addressing economic and social needs strongly favors individual and corporate charity over the establishment and enforcement of economic and social rights. This charity/justice imbalance has a severely negative impact on the nation’s poor, who despite the overall U.S. wealth struggle with inadequate access to healthcare, housing, and nutrition. This article suggests a two-part approach for remedying the charity/justice imbalance in the U.S.: First, the U.S. should eliminate the charitable tax deduction, a policy creation that does not effectively address economic and social needs, forces an inequitable poverty relief and tax burden on the middle class, and lulls the nation into a false sense of complacency about its poverty crisis. Second, the U.S. should replace the deduction with ratification of the International Covenant on Economic, Social and Cultural Rights. This two-part process would reverse the U.S. legacy of avoiding enforceable commitments to economic and social rights. Charity would take a step back; justice a step forward.
Richard Schmalbeck (Duke University School of Law) has posted Ending the Sweetheart Deal between Big-Time College Sports and the Tax System on SSRN. Here is the abstract:
This paper was prepared for the annual conference of the National Center for Philanthropy and Law, held at the NYU Law School, held October 24-25, 2013. The overall topic was “Tax Issues Affecting Colleges and Universities,” and I was asked to address specifically those issues relating to athletics. This paper considers two specific issues that have in common only that they involve college sports, and are plagued by egregiously bad, (in this case, egregiously generous), tax treatment: the failure of the IRS to regard any part of the revenue from college sports as unrelated business income, and the choice by Congress to allow taxpayers to deduct 80% of contributions that they make to colleges or their “booster clubs,” even when those contributions entitle the donors to special privileges in purchasing tickets to college athletic events.
Most readers are probably familiar with the general rules regarding charitable contributions deductions, but a word about the unrelated business income tax may be helpful. An organization may qualify (or continue to qualify) as a tax-exempt organization, eligible to receive tax-deductible contributions, if its activities are primarily charitable. However, if the organization regularly carries on trade or business activities that are unrelated to its exempt purpose, the income from those activities is subject to federal income taxation at the same rates applicable to for-profit corporations. Although those rates are low for small businesses (those earning less than $75,000 per year), corporate earnings in excess of that amount are taxed at a rate of 34% on up to ten million dollars of income, and 35% beyond that amount. The unrelated business income tax raises very little revenue, but is thought to have an in terrorem effect, discouraging nonprofit organizations from engaging in unrelated business activities. While the unrelated business tax exists primarily because of Congressional concerns about unfair competition with for-profit businesses, a better description of its actual effect is that it discourages nonprofit organizations from pursuit of business activities that do not further any exempt purpose.
Lionel Smith (McGill University - Faculty of Law - Paul-André Crépeau Centre for Private and Comparative Law; King's College London – The Dickson Poon School of Law) has posted Fiduciary Relationships: Ensuring the Loyal Exercise of Judgement on Behalf of Another on SSRN. Here is the abstract:
In this article, I present a theory of fiduciary relationships that seeks to address both the justification and the content of fiduciary duties. It will also address the question of remedies, which sheds important and neglected light on the question why this part of the law has the shape that it does. All three aspects — the reasons we impose these duties, what these duties require, and the remedies associated with them — are linked to one another in a conceptual unity that reveals the interlocking aspects of private law’s concern with relationships in which one person is empowered to exercise decision-making authority on behalf of another.
Hans Rawhouser (UNLV College of Business), Michael E. Cummings (UNLV College of Business), and Andrew Crane (York University - Schulich School of Business) have posted Benefit Corporation Legislation and the Emergence of a Social Hybrid Category on SSRN. Here is the abstract:
Previous research highlights the tensions that social hybrids face by spanning categories. This paper explores the emergence of legislation to support a new category for social hybrids, focusing on Benefit Corporation legislation in the United States. We present quantitative analysis of the state-level factors that make a state suitable for a social hybrid category (attractiveness for for-profit business and non-profits, existing social hybrid organizations, legislative intensity, political leanings) followed by qualitative analysis of the arguments marshaled for the creation of the Benefit Corporation legal form. Our findings raise important insights for research on social hybrids and suggest a range of practical implications.
Friday, January 30, 2015
Patrick Walker (Lindenwood University) has posted Whistleblower Protection for Missouri Nonprofit Organizations. Here is the abstract:
Nonprofit organizations exist primarily to further the interests of individuals, businesses, and communities who believe and trust in the organization’s mission. At the heart of every nonprofit’s mission is governance: creating systems, structure, and solutions to guide expectations and decision-making that promotes and protects good citizenship in business. Whistleblower policies represent “good governance” for public employees who report illegal or fraudulent activity by an employer, government, or organization, with a set of duties defined by law for employees and employers. While most states have whistleblower laws and policies protecting government and/or private sector employees, Missouri whistleblower protection only extends to public employees. This article will critique the notion of whistleblower protection in general and for Missouri nonprofit organizations, discuss implications of a recent Eighth Circuit Court of Appeals decision in
Chavez-Lavagnino v. Motivation Education Training, Inc., and outline a governance conceptual framework for developing whistleblower protection policies in nonprofit organizations.
Saturday, January 24, 2015
Elizabeth A.M. Searing (School of Policy Studies, Georgia State University) has published Charitable (Anti)Trust: The Role of Antitrust Regulation in the Nonprofit Sector, 5 Nonprofit Policy Forum 261 (2014). Here is the abstract:
The purpose of this study is to address the ambiguities in the application of anti-trust regulations to the nonprofit sector. We first survey policy tools and their diverse historical usage in nonprofit and mixed markets, specifically in professional associations, hospitals, and education. This analysis informs the development of a typology of anti-competitive nonprofit markets which is used to classify the three historical examples into eight traits. Finally, this typology is applied to three new markets – animal shelters, thrift stores, and soup kitchens – which have less in common with purely for-profit markets and have little or no discussion in antitrust literature. We find that the nonprofit form per se does not indicate an absence of anticompetitive practices or antitrust concerns; however, certain combinations of attributes – such as purely donative revenues and an absence of pricing ability – make the threat of anticompetitive practice less oppressive.
Hemphill & Cullari: The Benefit Corporation: Corporate Governance and the For-profit Social Entrepreneur
Thomas A. Hemphill and Francine Cullari (both School of Management, Michigan-Flint) have published The Benefit Corporation: Corporate Governance and the For-profit Social Entrepreneur, 119 Business and Society Review 519 (2014). Here is the abstract:
The adoption by 19 states and the District of Columbia of a new variant of the business corporation form—known as the benefit corporation—presents several issues for legislatures, for entrepreneurs electing to organize as benefit corporations, for existing corporations that are converting to the new form, and for the stakeholders (other than shareholders) who are intended to be considered in benefit corporation governance. The article presents the history and structure of the new business form and a discussion of what has become its predecessor—the constituency statute. The model benefit corporation statute provisions are reviewed, which many states have adopted in toto. The authors address the obstacles that should be overcome by legislatures, businesses, and stakeholders before further legislative adoptions occur, as well as considerations for effective implementation by government, corporations, and stakeholders under existing and proposed variations of the statute.
Samuel D. Brunson (Loyola-Chicago) has posted Dear I.R.S., It Is Time to Enforce the Campaigning Prohibition, Even Against Churches. Here is the abstract:
In 1954, Congress prohibited tax-exempt public charities, including churches, from endorsing or opposing candidates for office. To the extent a tax-exempt public charity violated this prohibition, it would no longer qualify as tax-exempt, and the I.R.S. was to revoke its exemption.
While simple in theory, in practice, the I.R.S. rarely penalizes churches that violate the campaigning prohibition, and virtually never revokes a church’s tax exemption. And, because no taxpayer has standing to challenge the I.R.S.’s inaction, the I.R.S. has no external imperative to revoke the exemptions of churches that do campaign on behalf of or against candidates for office.
This argument makes the normative case that, notwithstanding the I.R.S.’s administrative discretion and the inability of taxpayers to challenge its nonenforcement in court, the time has come for the I.R.S. to begin enforcing the campaigning prohibition. Failing to do so harms the Rule of Law, the taxpaying public, and churches themselves. Moreover, the moment is correct for enforcement, as Pulpit Freedom Sunday has virtually eliminated the I.R.S.’s search costs, people are more aware than ever that churches are violating the prohibition, and, in the aftermath of the Supreme Court’s Citizens United decision, the campaigning prohibition may represent the final regulatory barrier between charities and politicking.
Even if enforcing the campaigning prohibition is the right thing to do, it would potentially be unpopular, and could provoke a backlash against the I.R.S. After making the normative case for enforcement, then, this Article provides a strategy for enforcement that will allow the I.R.S. to explain what it is doing and why to the general taxpaying public, and will further permit the I.R.S. to avoid the appearance of partisanship. Ultimately, enforcement will allow the I.R.S. to responsibly administer the tax law, will permit the question of the prohibition’s constitutionality to get in front of the judiciary, and will demonstrate dedication to the Rule of Law.
To this day, the law of charity is often thought of as a matter for the states. In fact, the crucial law relating to charity is now almost always federal. For certain purposes, state law still determines whether a given entity is “charitable.” It also determines the propriety of a charitable fiduciary’s conduct when someone who has standing sues. But federal law determines whether an entity qualifies for various tax incentives, such as exemption from the federal income tax and eligibility to receive tax-deductible gifts, and qualification for these incentives generally determines whether the entity comes into existence and, if so, whether it survives. Federal law also wields a bewildering array of draconian penalties against both charities and their fiduciaries for failure to comply with federally specified rules of behavior. This Article examines both of these and other ways in which federal law has essentially taken over the law of charity. The point is not whether federalization of the law of charity is good or bad. The point is simply this: During the last century, Congress and the federal courts federalized the law of charity.
Saturday, November 29, 2014
Oonagh B. Breen (University College Dublin) has posted Long Day's Journey: The Charities Act 2009 and Recent Developments in Irish Charity Law, Charity Law and Practice Review (forthcoming). Here is the abstract:
It is now twelve years since the Irish Government committed in its Agreed Programme for Government to the introduction of a modern statutory framework for the regulation of Irish charities. Twelve years on, in 2014, the promise of reform to ensure “greater accountability and to protect against abuse of charitable status and fraud . . . [and increased] transparency in the sector has never been more necessary and yet still remains to be delivered. Despite the passage of the Charities Act 2009, its non-implementation has created a regulatory void into which allegations of charity maladministration and misfeasance have filled the public consciousness.
In his seminal work on the formation of public policy, John Kingdon provides a persuasive theory to explain the opening, operation and outcomes of so-called ‘policy windows.’ According to Kingdon, at any given time, a ‘problem stream’ exists representing all the issues that are wrong in a given system. Running (often) parallel to the problem stream will be a ‘solution stream’ containing all of those suggested fixes to make a system work better. It is only when there is a convergence of those two streams within a third ‘political stream’ that policy change occurs. The nature of the political stream within which this convergence occurs can take many forms. In the words of Kingdon, it can comprise “public mood, pressure group campaigns, election results, partisan or ideological distributions in Congress and changes of administration.” The collision of problem and solution streams within this political stream results in the temporary opening of a policy window, allowing policy change to occur. The form of such resultant change may be shaped further by coincidental influences or agenda issues hovering in the vicinity of the window which attach themselves to the coat tails of the newly minted policy outcome. This conception of the policymaking process is useful, providing as it does some insight into how certain policy solutions come to be expectations or have other unintended consequences.
In an Irish context, Kingdon’s framework provides a useful lens through which to analyse the ‘fits and starts’ approach to charity law reform. Against the backdrop of the recent revelations concerning the Central Remedial Clinic and the Rehab Group charities and the catalytic effect of these scandals on the Irish charity sector and charity regulation more generally, this article reviews the current progress in the implementation of the Charities Act 2009, recent moves towards the establishment of the long awaited Charities Regulatory Authority and the prospects and challenges for better charity governance ahead.
Part I of this article reviews the existing Irish ‘problem’ and ‘solution’ streams in the context of charity regulation and outlines the political catalysts that are now instrumental in driving reform. Part II outlines the pending changes to be introduced over the coming months and the implementation challenges that will face the new Charities Regulator. Part III attempts to align the recent shortfalls in charity governance with the forthcoming statutory requirements and assesses whether the policy changes that the public are so desperately seeking will be delivered by the much anticipated commencement of the Charities Act 2009.
Kathryn Chan (University of Victoria) has posted The Co-Optation of Charitable Resources by Threatened Welfare States, 40 Queen's Law Journal (forthcoming 2015). Here is the abstract:
This paper addresses the emerging issue of the governmental co-optation of charitable resources, considering to what extent modern pressures associated with the retrenchment of welfare states are undermining the charitable sector’s traditional independence from government. It pursues this goal by advancing a theoretical contrast between ‘independent’ and ‘co-opted’ charities, and by identifying and contrasting certain legal and institutional mechanisms that either encourage or limit the co-optation ofcharitable resources by governments in England and in Canada.
The paper proceeds in the following way. I begin by advancing an argument in support of the value of an “independent” charitable sector, and the perils of allowing a nation’s charitable resources to be co-opted by the state. I proceed from this argument to articulate two indicia of a “co-opted” charity, relating these indicia to an important body of Anglo-Commonwealth law on the functional public law-private law divide and thus to debates over whether charities should bear human rights obligations and the other special responsibilities of the state. In part four, I distinguish three broad categories of co-optation that are applicable to charities: definitional (or existential) co-optation, managerial co-optation, and contractual (or fiscal) co-optation. I then examine several modern phenomena that tend towards the co-optation ofcharitable resources by government: the exertion of government influence over the legal definition of charity, the creation of statutory charities that are controlled by government or directed towards its purposes, and the exertion of influence over the administration of charitable resources through the negotiation of funding agreements or the appointment of government authority trustees. I consider how, in their response to each of these phenomena, English and Canadian laws and institutions either assist or obstruct government efforts to make charities comply with particular public welfare goals. I conclude that English law does far more than Canadian law to prevent charities from coming to function as agents of government policy, and may thus be regarded as a source of ideas on how Canada might manifest a stronger political commitment to the charitable sector’s independence.
Lilian V. Faulhaber (Boston University) has published Charitable Giving, Tax Expenditures, and Direct Spending in the United States and the European Union, 39 Yale Journal of International Law 87 (2014). Here is the abstract:
This Article compares the ways in which the United States and the European Union limit the ability of state-level entities to subsidize their own residents, whether through direct subsidies or through tax expenditures. It uses four recent charitable giving cases decided by the European Court of Justice (ECJ) to illustrate the ECJ’s evolving tax expenditure jurisprudence and argues that, while this jurisprudence may suggest a new and promising model for fiscal federalism, it may also have negative social policy implications. It also points out that the court analyzes direct spending and tax expenditures under different rubrics despite their economic equivalence and does not provide a clear rule for distinguishing between the two, adding to the confusion of Member States and taxpayers. The Article then surveys the Supreme Court’s Dormant Commerce Clause jurisprudence, under which the Court analyzes discriminatory state spending provisions. The Article concludes that although both the Supreme Court and the ECJ prioritize formalism over economic equivalence, the Supreme Court’s approach to tax expenditures is more defensible than that of the ECJ due to the different federal structures of the two jurisdictions.
James Fishman (Pace) has posted What Went Wrong: Prudent Management of Endowment Funds and Imprudent Endowment Investing Policies, 40 Journal of College and University Law (forthcoming 2014). Here is the abstract:
Most colleges and universities of all sizes have an endowment, a fund that provides a stream of income and maintains the corpus of the fund in perpetuity. Organizations with large endowments, such as colleges, universities, and private foundations, all finance a significant part of their operations through the return received from the investment of this capital. This article examines the legal framework for endowment investing, endowment investing policies, their evolution to more sophisticated and riskier strategies, and the consequences evinced during the financial crisis of 2008 and beyond. It traces the approaches to endowment investing and chronicles the rise and, if not the fall, the challenges to modern portfolio management. It examines the impact of endowment losses on colleges and universities and their constituencies, as well as the problem of trustee deference to boards' investment committees. This article concludes that universities have learned little from the financial crisis and are more invested in illiquid, nontransparent assets than before the financial crisis. Finally, this article recommends the establishment of board level risk management committees to evaluate endowment investing policies.
Brian L. Frye (Kentucky) has published Solving Charity Failures, 93 Oregon Law Review 155 (2014). Here is the abstract:
“Crowdfunding” is a way of using the Internet to raise money by asking the public to contribute to a project. This Article argues that crowdfunding has succeeded, at least in part, because it makes charitable giving more efficient by solving certain “charity failures,” or inefficiencies created by the inability of the charitable contribution deduction to subsidize the charitable giving from low-income donors. The economic subsidy theory of the charitable contribution deduction explains that the deduction is justified because it solves market failures and government failures in charitable goods. According to this theory, free riding causes market failures in charitable goods, and majoritarianism causes government failures in charitable goods. The charitable contribution deduction solves these market and government failures by indirectly subsidizing charitable contributions, thereby compensating for free riding and avoiding majoritarianism. Crowdfunding is successful because it provides a technological solution to some of those charity failures. While the charitable contribution deduction causes charity failures because the deduction cannot subsidize contributions from low-income donors, crowdfunding can subsidize those contributions by offering rewards instead. As a result, crowdfunding should solve at least some of the charity failures caused by the deduction through providing an incentive for low-income donors to contribute. The remarkable success of crowdfunding suggests that the inefficiency associated with charity failures is quite large.