Monday, July 15, 2013
A Maine Superior Court has overruled the decision by the Town of Limington to deny or limit property tax exemption for several parcels of land identified as either "Tree Growth" or "Open Space" properties under the applicable state law. In Francis Small Heritage Trust v. The Town of Limington, the court briefly described the broader context of tax exemptions for charitable institutions under both federal and state law before providing a detailed recitation of the law relating to Maine's property tax exemptions (including a reference to the Elizabethan Charitable Uses Act of 1601!). It both concluded that the Francis Small Heritage Trust "is operated for purely benevolent and charitable purposes in good faith" and rejected the Board of Property Tax Review's argument that permitting logging, farming, and other compatible commercial activities was disqualifying given that so such activities had never in fact taken place and even if they had limited, purely incidental such activities did not undermine exemption. The fact that the properties at issue were indisputedly used to conserve wildlife habitat and were open to the public year-around at no cost also contributed to the court's decision.
Wednesday, June 19, 2013
Just as a follow up to yesterday's post on the Oregon spendig requirement, I took a quick look again at the Form 990 (go to page 10) and its instructions regarding the allocation of program service expenses (go to pages 41 through 43). My personal favorite is the instruction on how to allocate indirect costs, which requires the charity to list everything as an administrative cost in column C (that being not a program service expense) and then to add a separate, self-created line under "Other" in which the charity is instructed to place a negative number in column C in order to allocate indirect costs to program service in B or to fundraising expenses in D. So that's clear as mud -- no chance of error there.
Also, take a look at the list of administrative expenses to be reported in column C and think about a smallish charity - one that does a full Form 990 but is still relatively small in terms of revenue and expense - for example, a small medical clinic. The list in the instructions includes the CEO and staff by default (unless directly involved in program service oversight) as well as "costs of board of directors' meetings; committee meetings, and staff meetings (unless they involve specific program services or fundraising activities); general legal services; accounting (including patient accounting and billing); general liability insurance; office management; auditing, human resources, and other centralized services; preparation, publication, and distribution of an annual report; and management of investments." I wouldn't be surprised if such a charity had issues, or at least is forced into taking a fairly aggressive position on indirect cost allocations.
When we think about fradulent charities, I don't think most of us think of these types of expenses.
Just a thought. EWW
Tuesday, June 18, 2013
H.B. 2060 was signed into law by Governor Kitzhaber on June 4, 2013 and goes into effect 91 days after the 2013 regular session of the Oregon Legislative Assembly ends. Specifically, the Oregon Attorney General can disqualify an organization from receiving state income tax deductible contributions if
the organization has failed to expend at least 30 percent of the organization's total annual functional expenses on program services when those expenses are averaged over the most recent three fiscal years for which the Attorney General has reports containing expense information. The calculation of program services expenses and total functional expenses shall be based on the amounts of program services expenses and total functional expenses identified by the organization in the organization's Internal Revenue Service Form 990 return or other Internal Revenue Service return required to be filed as part of the organization's report to the Attorney General.
Oregon H.B. 2060, Section 2(1) (emphasis added). There is an appeal procedure that would allow the charity to show that payments were made to affiliates, were being accumulated for capital campaigns, or "such other mitigating circumstances as may be identified by the Attorney General by rule." Section 2(2)(c). A disqualified charity is required to notify its donors that donations to it are not deductible. Interestingly, a disqualification order may not be issued to "an organization that receives less than 50 percent of the organization's total annual revenues from contributions or grants identified in accordance with Internal Revenue Service Form 990 or an equivalent form" (fee for service charities, rejoice!) Section 2(4)(g). The legislation can be found here.
There are a number of issues that first came to mind when I read this legislation.
The first, of course, is the fallacy that a certain level of "program service" expenditures is an appropriate indicator of a charity's effectiveness. Even if it were an appropriate measure, why set it at 30%? Why exempt fee-for-service charities? Why exempt small charities? (On this topic, see GuideStar, BBB Wise Giving Alliance, and Charity Navigator on the “Overhead Myth”).
At least in the short term, this legislation punishes the wrong party - a charity's donors - by disallowing the state income tax charitable deduction. It does appear to also take away the ability of the charity to be tax exempt and, of course, in the long term, the charity's donor base could essentially disappear.
Along those same lines, I am concerned that you could have a charity that is disqualified due to a temporary blip in financials and is then required to send a donor notice. Even if that charity is subsequently rehabilitated, it is permanently damaged. The state has now devalued one of the charity's most valuable assets: its donor list. The Oregon Attorney General's press release talks about targetting bogus charities - I'm not convinced initially that its scope will be so limited.
Finally, as is pointed out in this commentary by Nonprofit Quarterly, the error rate on preparing the Form 990 is ridiculously high. I am somewhat troubled by the assertion by the Nonprofit Association of Oregon that organizations that make a reasonable attempt to allocate expenses won't get caught in this trap. In my experience, even sophisticated clients with paid accountants regularly misstate program service expenditures. (I note that the Nonprofit Association takes the position that only full Form 990 filers (not N or EZ filers) would be affected by the legislation.)
Thoughts, especially from our Oregon friends? EWW
Wednesday, May 29, 2013
Pennsylvania Attorney General Kathleen G. Kane recently announced that her office had resolved an investigation into the administration of the Milton Hershey School and the Hershey Trust Company by entering into an agreement with the School and Trust that implements a variety of governance reforms for both entities. Attorney General Kane also noted that her office had not found any breach of fiduciary duty during its investigation. The agreed upon reforms included:
- Limiting overlapping board members between the School and Trust on one hand and the for-profit Hershey companies on the other hand.
- Reduced board compensation, new procedures for any future adjustment to such compensation, and a new, more restrictive policy for reimbursement of board member expenses.
- A strengthened Conflicts of Interest Policy.
- Required reports to the AG relating to compliance with the agreement, increased AG access to various materials, and advance notice to the AG for certain real estate transactions.
For previous posts about the concerns that led to this investigation, see Eisenberg on the Hershey School, Pressure Continues on Hershey Trust Board of Directors, and Milton Hershey School Trust - Excessive Trustee Compensation? It is far from clear that the report and agreement will satisfy those critical of how their respective boards have managed these charities - Pablo Eisenberg has already written a negative assessment of the investigation's resolution.
Thursday, March 21, 2013
As some of you may have heard, the charity set up by NJ first lady Mary Pat Christie to provide Hurricane Sandy relief is under fire from watchdog groups. It has raised around $32.0 million so far, but hasn't made any distributions in the four months from the date of the storm (as of the March 11 article). This article in the Asbury Park Press raises a number of questions about the fund:
- Why is it taking so long?
- Why are you running it when you have no charity background?
- Why did you hire your protocol assistant as ED?
- Why is she getting paid $160,000 a year?
- Why aren't you giving funds to individuals?
- Is this all just a political stunt for your husband?
The article compares the fund to other organizations that have moved more quickly to provide Sandy relief, such as the Robin Hood Foundation. In response to all of these questions, Mrs. Christie answers that, unlike the Robin Hood Foundation, her organization is new. They have a small administrative budget and small staff. In discussing the delay in distributing funds, she cites the learning curve in getting a charity up and functioning and the lessons learned from other disaster relief organizations. She also indicates that she plans to be around for at least two or three years while the clean up continues.
I will take it as a given that she is trying to doing something good for her state with only the best of intentions. I also think that many of these questions have legitimate answers - four months from start up isn't a long time at all in the grand scheme of the life cycle of a charity. Fair enough. But given these answers, why didn't the reporter ask the question that first jumped out to me:
- Why was it necessary to set up a new organization in the first place?
If the problem is that you have new people setting up a new charity and that's why you are slow - you had an option. That option would have been to utilize an existing charity with established procedures and experienced people? Were there really no existing charities in the state of New Jersey that would have been willing to work with the Governor and the First Lady to set up a structure to address the needs of the population after a disaster of epic proportions? Maybe someone who has more experience with the New Jersey charitable community can tell me otherwise, but a quick Google search brought me here, for example.
In practice, I lamented the proliferation of charities - in the best of circumstances, these new charities were the products of good intent, unbridled optimism, and poor planning. I often tried to talk clients out of setting up new charities by encouraging them to find a partner with whom to work (what lawyer tries to talk herself out of work!), but I was rarely successful. Now that I can think about the sector more holistically, it has caused me to wonder whether we should be making it more difficult to set up a new charity. In looking at the recent efforts of the IRS, it seems to me there has been a trend to making it less difficult - the Form 1023 online project, the removal of the advance ruling period, the increase in the filing limits for the various flavors of the Form 990, to think of a few items off the top of my head.
Of course, the benefit of a lower barrier to exemption access is that it encourages innovation and experimentation in the sector - a potentially inefficient but worthy outcome. The cost of raising the barrier of access would be the "conglomeration" of charities. Is that an acceptable price to pay to address the issue of duplicative administrative costs and the need efficient and timely operations - especially in a time when private charity plays an increasing role in the delivery of social services? Would it really be any better?
I don't know. Just throwing it out there. EWW
Wednesday, February 13, 2013
The Pittsburgh Post-Gazette reports that Allegheny County (Pennsylvania) Executive Rich Fitzgerald recently announced plans to send letters to of all 9,000 properties currently identified as non-government, tax-exempt to demand proof that those properties meet the current five-part test for property tax exemption. Ironically, county legislation passed in 2007 required a systematic review of such exemptions every three years, so the letters are actually three years late. This systematic review is only one more avenue being pursued by the county and Pittsburgh to collect revenues from nonprofit organizations, as we have previously blogged about a "voluntary" payment agreement with colleges and universities (2009) and a payments-in-lieu-of-taxes (PILOT) agreement with a coalition of nonprofits (in place from at least 2010 through 2012).
Tuesday, January 22, 2013
A modestly-improving economy does not seem to have halted the trend of local property tax exemption fights. Here's a roundup of recent ones, to give a flavor of the scope of what's going on.
Vanderbilt University is seeking full property tax exemption for 11 fraternity/sorority houses. According to Vanderbilt, an agreement with the Greek organizations transferred full control over the property to Vanderbilt, and therefore the houses should be exempt like any other student housing. The move would save Vanderbilt (whose 2013 operating budget was $3.7 billion) $74,000 in annual property taxes. To paraphrase the late Senator Everett Dirksen, "$74,000 here and $74,000 there, and pretty soon you're talking about real money."
Meanwhile, the town of Hebron, Indiana, is fighting property tax exemption granted by the state to a set of apartment buildings. "Town Clerk-Treasurer Terri Waywood said the exemption was granted because the complex provides its tenants with classes in managing money and other services they can't get anywhere else in town." Sounds like a tax-exemption blueprint for all the apartment complexes in Indiana; heck, who doesn't need help managing their money? Even the folks on Downton Abbey could use some instruction on this front . . .
In Knoxville, Tennessee, a pair of golf courses are fighting to re-establish exempt status, and Texas State University's exempt status apparently is causing some budgetary headaches (heartache?) in San Marcos, Texas.
Some days I wonder whether the solution is just to get rid of all tax exemptions . . .
Friday, December 14, 2012
As reported by the Nonprofit Quarterly, a Maine court is set hear a case where the town of Hebron is arguing that the nonprofit boarding school, Hebron Academy, owes property taxes on income-generating uses of its facilities (i.e., rentals to outside groups for events). The argument ultimately comes down to an extent issue, with the town arguing that there is too much non-school use of the Academy's ice rink and other facilities, resulting in them becoming "taxable venues." Interestingly, Maine's incoming Attorney General has filed a brief supporting the Academy.
The case could provide a persuasive bright-line threshold for when commercial use of nonprofit property rises to a level exceeding "incidental," and thus becomes taxable.
[See a more extensive article in the Portland Press Herald]
Thursday, December 13, 2012
As reported by the Nonprofit Quarterly, the founder and former board president of a New York City nonprofit, Educational Housing Services, that provided affordable housing to students entered into to a $5.5 million settlement with the New York Attorney General Eric Schneiderman, ending an investigation involving "stunning" board negligence according to the AG. The article summarizes the board's poor stewardship:
According to the attorney general’s findings, the board breached its duties of loyalty and care between the years of 2003 and 2009 by contracting with Student Services, Inc. (SSI), a corporation founded and controlled by Scott [founder] and his wife which he says charged Educational Housing millions of dollars for intermediating cable, phone and Internet services for the building at a large mark-up. The attorney general’s office asserts that SSI provided no meaningful benefit and sees the situation as a case of civil fraud that was approved by the board of directors. Therefore it is not pursuing criminal charges against Scott but it is tapping the personal assets of Scott, the organization, and the trustees.
“We have no tolerance for officers and directors who treat a nonprofit organization as a vehicle for personal enrichment,” Schneiderman said in a statement. The AG’s findings state that board members received salaries simply for being trustees and that some had well-compensated consulting contracts that provided “little value” to EHS. As a result of the settlement, which includes no admission of any wrongdoing whatsoever, the five board members must pay $1 million from their own personal funds and they have resigned and been forever banned from sitting on the board of any New York charity. Scott has also resigned and is required to make restitution of $2.5 million personally, while Scott and SSI will jointly waive their rights to an additional $2 million expected under the EHS-SSI agreement, and the board will pay $1 million.
[For follow-up discussion on board oversight of conflict transactions, see Price of Board Inaction: $5.5-Million for One Charity (The Chronicle of Philanthropy)]
The Wall Street Journal reports that the New York Attorney General's office has issued proposed regulations that would require most tax-exempt organizations registered in New York, including 501(c)(4)s, to disclose/report their annual spending on "electioneering activities" at the state and local level. Under state law, any nonprofit that receives $25,000 in annual New York-sourced donations must register with the AG's charities bureau. Under the regulations, reportable activities would include "advertisements or communications calling for the election or defeat of a candidate, ballot question or party, or those that depict or clearly identify them within 180 days of an election."
Tuesday, October 16, 2012
From the Nonprofit Quarterly comes a story about the city council of Scranton, PA and the city council's potential "hardball" approach to coaxing PILOTs from the city's nonprofit sector.
The story recounts how the City Council has asked that it be given notice of any zoning variance applied for by a nonprofit, so that the council can (if it chooses to do so) oppose the variance before the zoning authorities. The undercurrent of the story is that the potential opposition might be tied to whether the nonprofit agrees to a PILOT. The author of the NPQ article indignantly claims this is discriminatory, because the tax status of the organization requesting the variance should have no bearing on whether the variance is granted:
If a tax-exempt and a tax-paying entity both apply for variances regarding off-site parking requirements, for example, it would seem to be a big stretch to argue that the tax status of an applicant trumps the empirical questions about the land use.
Well, I'm not sure I agree. Zoning is clearly about land use, but in a larger sense it is about the overall economic health of a particular geographic area. Tax revenues are certainly a consideration in that overall economic health and I don't find it untoward for zoning variances to consider the effect on the local tax base (assuming, of course, that consideration is not prohibited by local zoning laws; I have to believe that if the city council's attorney thinks that such consideration is appropriate, there probably isn't a Pennsylvania statute prohibiting it). If Scranton wants to play hardball with nonprofit organizations, potentially holding zoning variances "hostage" in return for payments, that's life in big city politics. There's some saying about "kitchens" and "heat" that seems appropriate here . . .
Monday, October 8, 2012
This Reuters piece from Sept. 28th highlights a recent report prepared by the Lincoln Institute of Land Policy, which finds that local PILOT programs do raise some revenue, but not a significant amount. The report (free but registration required) contains a significant amount of statistical information on the distribution of PILOT programs by region and by nonprofit sector, with hospitals and universities in the Northeast bearing the heaviest burden. The authors believe that this may be, at least in part, because the Northeast is “substantially more reliant on the property tax as a revenue source for funding local governments than other parts of the country.” (Page 2)
The report is an interesting read, although it notes its own limitations. There is no good collection point for data from PILOT programs, so the collection was, by necessity, somewhat ad hoc. As a result, the authors can only point to this information as a floor. Moreover, although the data shows an increase in PILOT programs and revenues over time, it is difficult to know whether this increase is due to the increase in the number of programs or simply due to better data collection methodologies. Finally, data collection is hampered by the lack of a consistent definition of a “PILOT” program.
In any event, what is striking is the relatively small amount of money raised if you aren’t in a jurisdiction like the Boston metro area, which has many large organizations making substantial payments. It makes one wonder whether the administrative costs and the poisoning of the relationship with large institutional citizens is worth the effort. Given the status of state and local governmental budgets these days, I’m sure they’d say that every penny is needed.
Thursday, September 27, 2012
We previously blogged about the New York Attorney General Eric T. Schneiderman's inquiry into politically active Internal Revenue Code section 501(c)(4) tax-exempt organizations. Last week U.S. Senator Orrin Hatch (R-Utah) and U.S. Representative Dave Camp (R-Mich.), the Ranking Member of the Senate Finance Committee and the Chairman of the House Ways and Means Committee, respectively, called on AG Schneiderman to halt his investigations. They focused in particular on the reported attempts by the AG to obtain IRS filings directly from the targeted organizations, including the non-public schedule of significant donors, rather than through the IRS-admnistered process for states to obtain tax return information, and stated that "We emphasize strongly that willful unauthorized disclosure of returns or return information is a federal crime subject to fines and/or imprisonment."
This week the Hill reports that AG Schneiderman fired back, defending his right as a state attorney general to directly request tax information from charitable and other nonprofit groups, including federal information returns such as the Form 990. And according to a report in Politico, the AG's response provided that "“Each state has a fundamental interest in ensuring compliance with its tax laws and in regulating certain activities of nonprofits. The recent activities of some tax-exempt organizations and businesses have been matters of great concern to New Yorkers. While my office respects applicable federal requirements and restrictions, I will continue to perform my duties and enforce the laws of the State of New York.”
The bottom line is that it appears that a previously obscure issue - whether charities and other nonprofits required to provide copies of their Forms 990 to state officials under state law could withhold or redact the schedule of donors for those returns (Schedule B) so as not to have that information publicly disclosed by the state - is now front-and-center in the ongoing dispute over politically active 501(c)(4) organizations.
The Seattle Times reports that Washington's Public Disclosure Commission has clarified that while churches may ask members to donate to Preserve Marriage Washington, a group opposing Washington's same-sex marriage law, churches may not themselves collect the contributions and turn them over to Preserve Marriage. Instead, either Preserve Marriage must collect such contributions or church members individually must send their contributions directly to the organization. According to an Associated Press report, the limitation is because of Washington state's "anti-bundling" laws that limit the role of intermediaries in raising and collecting funds for groups engaged in campaign spending. Preserve Marriage is supporting Referendum 74, which would ask voters this November to either approve or reject the state's same-sex marriage law.
Sunday, August 12, 2012
The NY Times reports that New York Attorney General Eric T. Schneiderman has stepped up his inquiry of politically active tax-exempt organizations by requesting tax returns and other financial documents from these groups. According to the article, the almost two dozen targeted entities include both right-leaning groups such as Crossroads Grassroots Policy Strategies (Crossroads GPS) and American Action Network and left-leaning groups such as Priorities USA Action and Patriot Majority USA. All of these entities claim tax-exempt status as social welfare organizations under Internal Revenue Code section 501(c)(4), which permits them to avoid publicly disclosing their donors unless they engage in certain types of election-related activity. The NY Times reported earlier this summer that AG Schneiderman had begun this investigation, with an apparent focus then on the U.S. Chamber of Commerce (a section 501(c)(6) organization that also generally is not required to publicly disclose its donors).
Thursday, August 2, 2012
New Hampshire Attorney General, Michael A. Delaney, announced today that the New Hampshire Center for Public Policy Studies (NHCPPS) has issued its report on executive compensation at New Hampshire's nonprofit hospitals. The Attorney General commissioned the NHCPPS to conduct the study in 2011. The review was to determine whether the trustees of New Hampshire's nonprofit hospitals are meeting their fiduciary responsibilities in setting executive compensation, and to examine the types and variations in executive compensation among the hospitals.
According to a press release from the New Hampshire Department of Justice,
The report finds that most hospitals follow the process established by the Internal Revenue Service (IRS) for determining executive salaries. However, these hospitals do not necessarily follow the same process in determining other forms of executive compensation including hiring and retention agreements, bonuses, and perquisites. These additional forms of compensation can, in some circumstances, constitute a significant portion of an executive's pay package. The Report also finds that for most hospitals there is a correlation between hospital size and levels of compensation paid to the chief executive officer (CEO). The data does not however show a significant correlation between CEO compensation and hospital performance measures such as quality of care, cost of care, or charitable care provided. Given these hospitals exist to provide quality health care and are required to provide community benefit and charitable care in light of their non-profit status, the lack of such a correlation is a significant concern.
The Report found that in using IRS guidelines to set compensation, there is a potential "log-rolling" effect created. As long as other hospitals are "moving the log forward" with similar levels of compensation, the industry remains in compliance with the IRS guidelines. Hospitals are supposed to use a range of salaries when setting their CEO compensation. In actual practice hospitals tend to target the 75 percentile, and often higher, in setting their CEO's compensation. This creates an upward spiral and executive compensation can grow at a rate disproportionate to relevant measures of achievement, or to increases experienced by other sectors of the population. This appears to have been the case even during the significant economic downturn experienced since 2008.
All of New Hampshire's 23 nonprofit hospitals were included in the review.
Thursday, July 12, 2012
A while ago I posted about a recent Pennsylvania Supreme Court decision on tax exemption that I speculated might reopen the door to property exemption challenges. The President of the Pittsburgh City Council might have kicked that door open a bit recently. A story posted on Pittsburgh's public radio station web site notes that city council president Darlene Harris is "investigating whether the city could legally challenge the tax-exempt status of large nonprofits in Pittsburgh." Harris apparently specifically referred to the recent Pennsylvania Supreme Court decision as grounds for her investigation.
“What some call ‘nonprofit’ is not necessarily all nonprofit,” said Harris. “If you can pay for having commercials during Super Bowls, if you can pay for your name to be on the top of the highest buildings in the City of Pittsburgh… There are doctors that will not see poor people.”
It appears that the City Council is not exactly happy with the PILOT deal struck with a consortium of Pittsburgh nonprofits that we blogged about last week. The story quotes council budget director Bill Urbanic, who stated “If these were ‘taxable organizations,’ the amount of payroll tax we would receive would be somewhere around $22 million… Also, the real estate, with the new assessment, is probably somewhere between $35 to $50 million. So, you’re looking at somewhere around $60 to $70 million that we’re forgoing, and what we’re getting instead is $2.6 million annually.”
Has the rumble over property tax exemption started in Pennsylvania?
Friday, June 22, 2012
As reported in The Washington Post, a $4 billion charitable trust created by the late Alfred I. duPont is the subject of scrutiny by the Delaware Attorney General Beau Biden. Biden alleges in court documents filed in Florida, where the trust is managed, that the trustees have mismanaged the trust and not adhered to the grantor's intentions. Specifically, the trustees are accused of deviating significantly from duPont's original intent by not focusing the trust on Delaware, as stipulated in duPont's will. The trust provides annuity payments to certain beneficiaries of duPont's will and, more significantly, funds the Nemours Foundation which operates health care facilities in Delaware, Florida, New Jersey, and Pennyslvania. The Foundation also operates the Nemours Mansion and Gardens in Wilmington, Delaware. Among some of the allegations in the court filing, the Delaware AG claims that certain renovation costs of the Mansion as well as administrative expenses were over-attributed to Delaware, thereby reducing its annual trust distributions over a 6-year period. As a result, the trust has not been operating more for the benefit of Delawareans.
The trustees "welcome a dialogue" with the Delaware AG. This court filing adds further complications to the trustees' efforts to bifurcate the existing trust to achieve better foreign tax treatment for its overseas investments. For more details on the lawsuit, see the Delaware AG's media release.
(Hat tip: Philanthropy News Digest)
Wednesday, June 13, 2012
The NY Post reports that New York Attorney General Eric Schneiderman is planning to send letters this week to 1,649 charities threatening them with cancellation of their registrations with the state unless they submit late reports within 20 days. If the AG cancels their registrations, the charities will no longer be legally eligible to raise funds in the state from either private or government sources. The New York registration and reporting requirements are enforced by New York's Charities Bureau, housed in the AG's office.
The NY Times reports that the section 501(c)(4) Committee to Save New York, organized at the urging of Governor Andrew Cuomo to promote his policies and praise his performance, received $17 million last year. Only now it has come to light that among the Committee's financial supporters is the New York Gaming Association, a trade group that supports expanding legalized gambling, that contributed $2 million. That information was apparently not known before because the Committee, like all section 501(c)(4) organizations generally, is not required to publicly disclose its donors. The NY Times is urging Gov. Cuomo to push the Committee to reveal all of its donors, especially giving the Governor's recent support for pro-gambling measures.