Nonprofit Law Prof Blog

China--Experiments on Relaxing Social Organization Regulations Begun in Shenzhen Municipality

A report published by the China Trade Associations and Chambers of Commercesays that the Ministry of Civil Affairs and the government of Shenzhen, a southern city located in Guangdong Province, have signed an agreement under which they will attempt a reform in Shenzhen of parts of the social organization regulation (SO) system applicable throughout China. According to the agreement, some aspects of the 1998 regulations will no longer apply and new measures will replace them in this experimental project. The new measures include:

a. Trying to establish a system for social organizations to register directly with the civil affairs department instead of finding a competent business unit first.
b. Giving the Shenzhen civil affairs bureau the right to regulate foundations which are located in Shenzhen but have business both inside and outside China.
c. Giving the Shenzhen civil affairs department the right to accept registration of social organizations that have business throughout China (under the 1998 regulations national SOs are required to register with the national civil affairs bureau). 

Presumably some of the measures will be limited to trade associations and will not apply to all SOs.

 

kws

ICCSL to Assist ABA in Commenting on "NGO" Laws

In order to facilitate the development of comments on the new and proposed “NGO” laws in Zambia and Iraq by an American Bar Association Task Force, ICCSL is making documents received so far available on its website.  The Task Force is being formed by the International NGOs and NPOs Committee of the Section of International Law.  Members of the Human Rights and Africa Committees of the International Law Section are also expected to join.  Law students at various law schools will assist with the drafting efforts.

The Comments will be based on a model used previously for comments on Zimbabwe’s Draft Changes to the NGO Law (developed by ICCSL).  Members of the Task Force will also consult the book prepared by ICCSL for the Open Society Institute in 2004: Leon Irish, Robert Kushen & Karla Simon, Guidelines for Laws Affecting Civic Organizations. 

Further information will be available at www.iccls.org.  Anyone interested in joining the Task Force should contact Karla Simon at [email protected].

kws

Azerbaijan--ICNL Publishes Comments on Amended NGO Law

ICNL has published comments on the Law of the Republic of Azerbaijan On Making Changes and Amendments to Some Legislative Acts of the Republic of Azerbaijan (hereinafter referred to as the “new law”), which came into effect on September 1, 2009 (the date the new law was published in the official newspaper Azerbaijan). This new law introduces changes and amendments to four laws, including the Law on Non-governmental Organizations (Public Associations and Foundations) (hereinafter the “NGO Law”), the Law on Mass Media, the Law on Grants, and the Code of Administrative Offences. ICNL’s comments focus on the NGO Law amendments.  ICNL raises two issues of concern: 1) The introduction of new but undefined financial reporting requirements for Azerbaijani NGOs may create a substantial administrative burden to NGOs; and 2) the institutionalization of the requirement that foreign NGOs operating in Azerbaijan may only operate in Azerbaijan on the basis of an agreement negotiated with a government agency without clear guidance and criteria for the agreement.

 

kws

Mystery Solved: Mory's Being A Charity

A republishing of my earlier Mory's posting in the daily email update distributed by Paul Streckfus, the Editor of the EO Tax Journal, generated this additional information from a Connecticut reader:

"The answer is that the club is not the charity, but a separate trust designed to support the certified historic structure within which the club operates. Contributions to Mory's Trust would be tax deductible as 'qualified conservation contributions' under section 170(h) of the Code; note that among the conservation purposes provided in subsection (4)(A) of that section is "(iv) the preservation of an historically important land area or a certified historic structure. The arrangement utilized by Mory's is not at all unusual, and numerous clubs with historic structures have acted likewise. The result is often the reconstruction and renovation of historic structures which, in many cases, were deteriorating."

My thanks to Paul for making this response available.

LHM

Harvard and Yale Announce 27.3 Percent & 30 Percent Endowment Declines

The New York Times reports that Harvard and Yale have disclosed the extent of their endowment losses during the last fiscal year, ended June 30, 2009.  For Harvard the decline was 27.3 percent, or more than $10 billion, to $26 billion.  In announcing the results, the Harvard Management Company's report stated it was reviewing its long-term strategy for its portfolio and had re-organized its personnel structure.  The article notes that available information indicates the losses were particularly pronounced in private equity investments, which not only lost value but in some cases required investors - including Harvard - to provide additional cash.  Even with the losses, however, the Management Company still reported a 10-year average annualized return of 8.9 percent and a 20-year return of 11.7 percent.

Yale reported a 30 percent decline to $16 billion, and Yale President Richard C. Levin stated in the letter announcing the results that the endowment payout had declined 6.7 percent for the current academic year, as compared to the previous year, and would decline by an additional 13 percent in 2010-11, at which level it would likely remain for the next several years.  He noted these figures are based on projections that the endowment will not decline further during the current academic year and will begin to grow again after June 30, 2010.  As a result of these declines, "another round of reductions will be necessary," including accelerating a previously announced 5% reduction in non-salary expenses from 2010-11 to the current academic year.

Additional coverage:  Bloomberg, Boston Globe, Reuters, Wall Street Journal.

LHM

Education Department Seeks Philanthropic Partners to Promote Innovation

Education Week reports that the U.S. Department of Education is seeking matching funds from private foundations to expand its existing $650 million Investing in Innovation (i3) Fund.  The Fund exists to make grants to local educational agencies, including charter schools, and nonprofits working with such agencies in order to bring to scale innovative educational practices.  The stimulus bill provided the Fund's initial dollars, but the Obama Administration is seeking an additional $100 million for the Fund in the next budget year.  The article reports earlier statements by Secretary of Education Arne Duncan that the first round of grants will fall into three categories: innovation awards for promising ideas (up to $5 million each) research or organizational capacity grants to increase the scale of existing programs (up to $30 million each), and expansion grants for proven programs (up to $50 million each).  The Department expects to begin making information about applying for the grants available in coming weeks, and to begin issuing grants in early 2010.

LHM

IRS Issues Guidelines for Processing Exemption Applications

The IRS has made publicly available guidelines it provides to its EO determination specialists for processing tax exemption applications filed by various specific types of entities.  The entities covered are:

• Donor Advised Funds
• Advance Approval of Individual Grant Procedures - Internal Revenue Code Section 4945
• Charter Schools - Exemption Application Issues
• Government-Affiliated Organizations - Internal Revenue Code Section 501(c)(3)
• Health Care Providers - Internal Revenue Code Section 501(c)(3)
• Hospitals Helping Staff Physicians Acquire Electronic Health Records Software
• Limited Liability Companies Associated with Tax-Exempt Organizations
• Low-Income Housing Tax Credit Partnerships
• Set-Asides - Internal Revenue Code Section 4942(g)(2)
• Supporting Organizations - Internal Revenue Code Section 509(a)(3)
• Voluntary Employee Beneficiary Associations - Internal Revenue Code Section 501(c)(9)

LHM

President Obama's Speech: Nonprofit Coops and Nonprofit Hospitals

While President Obama made clear in his speech last night that a public option is his first choice as a new, affordable insurer for the currently uninsured, he also left the door open for a private, nonprofit alternative: "Others propose a co-op or another nonprofit entity to administer the plan. These are all constructive ideas worth exploring."   And while Mr. Obama did not mention new requirements for nonprofit hospitals, he did cite two nonprofit healthcare systems for their successful efforts to "offer high-quality care at costs below average."  Interestingly, both organizations he named are best known among tax-exempt organization attorneys for their unsuccessful battles with the IRS: Intermountain Healthcare in Utah and the Geisinger Health System in Pennsylvania.  As many readers will recall, IHC lost a case seeking Code section 501(c)(3) status for three subsidies that IHC formed to operated HMOs as part of an integrated delivery system (see IHC Health Plans, Inc. v. Commissioner, 325 F.3d 1188 (10th Cir. 2003).  Geisinger lost a series of cases that raised similar issues (see Geisinger Health Plan v. Commissioner, 30 F.3d 494 (3d Cir. 1994); Geisinger Health Plan v. Commissioner, 985 F.2d 1210 (3d Cir. 1993)).  Perhaps innovative tax thinking also indicates innovative thinking in other areas.

LHM

California AG Sues Founder and Five Directors of Research Charity

The Los Angeles Times reports that California Attorney General Jerry Brown filed a lawsuit yesterday against Dr. Gerald D. Buckberg and five directors of the L.B. Research & Education Foundation.  According to the AG's complaint, Dr. Buckberg was the founder of the Foundation and a substantial contributor to it.  In a broad based set of claims reminiscent of the types of cases pursued by then New York AG Eliot Spitzer against private foundations located in his state, the suit alleges that the defendants violated both federal and California law, including breaches of their duties of loyalty and care, and failure to exercise responsibility as required by Code section 4945. 

The specific allegations are that the defendants improperly used the Foundation's funds for their own benefit, including funding their own medical research and research that helped for-profit companies in which they had financial interests.  Examples of the alleged mis-use of charitable funds from the AG's complaint include:

• Over $120,000 spent to fund the development of an educational DVD owned by a limited liability company that is in turn owned by Dr. Buckberg and a cousin of his.  The DVD also supported a medical patent owned by a separate company that was in turn owned by Dr. Buckberg and one of the directors.
• $1 million given to UCLA for an endowed faculty chair which Dr. Buckberg than applied for himself.  When UCLA did not grant him the chair, the Foundation then sued UCLA at a cost of over $400,000 to date.
• Tens of thousands of dollars spent to support research relating to a patented device owned by a company in turn owned by Dr. Buckberg and one of the directors.
• Over $200,000 spent on research conducted in whole or in part by by Dr. Buckberg.

AG Brown seeks an accounting of the Foundation's funds, an order barring the defendants from running the Foundation until such an accounting has been provided, damages and civil penalties from the defendants, and dissolution of the Foundation.

LHM

What the Citizens United Case May Mean for Nonprofits

I just finished listening to today's Supreme Court oral re-argument in Citizens United v. FEC.  For those readers not already familiar with the case, Citizens United is a tax-exempt nonprofit corporation that sought to distribute a 90-minute movie about Hillary Clinton through a video-on-demand cable arrangement during the 2008 primaries.  The FEC objected on the grounds that Hillary: The Movie cannot be reasonably interpreted as anything other than an attempt to convince viewers not to vote for Hillary Clinton and as such federal election law prohibits corporations, including nonprofit corporations, from paying for its broadcast shortly before a relevant election.  Citizens United sued, and the Court then threw the government a curve ball when it decided to order re-argument in the case on the question of whether the entire prohibition on corporations funding independent election communications should be declared unconstitutional (overturning two Supreme Court precedents).  For more details, see the ScotusWiki entry for the case.  A ruling is expected before the 2010 primary season.

If oral argument questions are any indication, it looks like a majority of the Court is in fact ready to throw out the prohibition on corporate spending for independent election communications.  What might this mean for nonprofits?  Well, history indicates that business corporations are hesitant to spend directly on political ads, presumably for fear of alienating customers, shareholders, and employees.  Instead, they channel such spending through groups like Citizens United, Chambers of Commerce, and trade associations - almost all of which are tax-exempt, nonprofit corporations.  If the Court's decision leads to a significant increasing in such spending - as supporters of the prohibition strongly believe - it will put pressure on the two weak spots when it comes to these tax-exempt but not charitable entities.  First, they can only maintain 501(c)(4) or 501(c)(6) tax-exempt status if political activity is not their "primary" activity - whatever that means.  Second, it is not completely clear what is political activity given the IRS' facts and circumstances approach to that topic.  It is on this latter pressure point that highly successful campaign finance law challenger Jim Bopp (who originally represented Citizens United) is focusing in the Catholic Answers and Christian Coalition of Florida cases (complaints available at the James Madison Center for Free Speech website).  While the value of 501(c)(4) or 501(c)(6) status is limited if such entities still have to disclose the identity of their donors because they engage in activity covered by federal election law (the disclosure provisions could well survive even if the corporate funding prohibition goes down), such status will probably still be sought so as to avoid classification by the IRS as a 527 organization that has proven to often be a short path to classification by the FEC as a PAC (with strict limits on contribution sources and amounts).

So the bottom line is a decision in Citizens United's favor may lead to many more challenges to the political activity rules for tax-exempt organizations.  We may be in for quite a ride.

LHM

Baucus Health Care Proposal Includes New Nonprofit Hospital Requirements

In the "Revenue Provisions" at the end of a leaked copy of Senator Max Baucus' (D-Mont.) proposed health care reform package made available by Fox News, there are two sentences relating specifically to nonprofit hospitals:

Non-profit Hospitals Requirements. This proposal would establish new requirements applicable to nonprofit hospitals. The requirements would include a periodic community needs assessment.

While relatively uninformative, it is reasonable to assume that this placeholder provision is a reference to the list of possible new requirements included  in a Senate Finance Committee report issued last May on "Financing Comprehensive Health Care Reform: Proposed Health System Savings and Revenue Options."  The revenue raisers section of that report included modifying the requirements for tax-exempt hospitals along these lines:

The Committee could consider a policy option that would codify organizational and operational requirements for determining whether a hospital is a charitable organization for purposes of section 501(c)(3) tax-exempt status.  Such requirements include, among other things, that section 501(c)(3) hospitals regularly conduct a community needs analysis, provide a minimum annual level of charitable patient care, not refuse service based on a patient's inability to pay, and follow certain procedures before instituting collection actions against patients.  Certain hospitals that are critical to the communities they serve or which have an independent basis for tax exemption (e.g., as an educational or scientific research organization) are excluded f

rom the minimum charity care requirement. The proposal includes provisions designed to ensure proper reporting and transparency of operations. In addition, the proposal provides for excise taxes, or “intermediate sanctions,” designed to encourage compliance with the operational requirements. These intermediate sanctions could be imposed, for example, in situations where revocation of tax-exempt status is viewed as inappropriate.

LHM

DC Circuit Rejects Nonprofit's Challenge to Lobbying Disclosure Law

In a decision issued yesterday, the U.S. Court of Appeals for the District of Columbia Circuit rejected a constitutional challenge by the National Association of Manufacturers to the Honest Leadership and Open Government Act of 2007 (HLOGA).  The relevant part of HLOGA amended the federal Lobbying Disclosure Act (LDA) to require the disclosure of any organization that "actively participates" in the planning, supervision, or control of lobbying activities engaged in by a registered lobbyist and contributes more than $5,000 to support that lobbying.   Previously, the LDA only required disclosure of organizations that exceeded the dollar limit and "in whole or in major part" planned, supervised, or controlled the lobbying activities.  According to the National Association of Manufacturers (NAM), under the old standard it did not have to disclose the identify of its members who exceeded the dollar threshold as long as at least several members were involved in any lobbying effort such that no single member met the "in whole or in major part" requirement.  Under the new standard, however, NAM would have to disclose the identities of many of its members.

NAM challenged the new standard on the grounds that it would chill the speech of NAM members and was unconstitutionally vague.  The Court of Appeals rejected both challenges, concluding that Congress' explicitly stated goal of increasing "public awareness of the efforts of paid lobbyists to influence the public decisionmaking process" is a compelling governmental interest that the expanded disclosure provision was narrowly tailored to serve, and that the new standard was not unconstitutionally vague.  The Court also, however, carefully noted that the door remained open to an as applied challenge by an organization whose members faced a demonstrated risk of retaliation if their identities became public.  It found, however, that NAM failed to make anything close to such a demonstration.

(Hat tip: Election Law Blog)

LHM

Iraq--CSOs Gear Up for Campaign Against Draft Law

The UN’s Programme on Governance in the Arab Region (POGAR) reports that Civil Society Organizations in Iraq are rejecting a draft law that regulates their work.  Citing Al Hayat, POGAR says that the Iraqi government published in early 2009 a draft law for regulating the activities of non-governmental organizations. The draft law met wide criticism at that time because it imposes heavy monitoring on the activities of more than 8500 operating in Iraq. The Iraqi government ignored all criticisms and referred the draft law to parliament for approval. The head of the Committee on Civil Society Organizations in the Iraqi parliament, Mrs. Ala Talabani, said that the draft law is very unfair and that the parliamentary committee wrote down many observations concerning the draft law that will be discussed in the new legislative session. Mr. Falah Alousi, a member of the “Rafidain Peace” NGO said that the draft law seeks to put NGOs and human rights organizations under severe supervision by state agencies, and also aims to interfere in the affairs of civil society organizations. He added that most NGOs have reservations against article pertaining to funding. The draft law stipulates that before establishing an NGO, the “Ministry of Civil Society Organizations” must approve the source of funding of that NGO. However, the draft law did not set criteria for acceptable funding, thereby rendering the Ministry’s approval arbitrary and selective. On the other hand, a high ranking government official said that the draft law was prepared by the government after it received information about the lack of organizational structures and work mechanisms of some NGOs; the lack of experience to build a proper NGO by others; in addition to turning of some NGOs into a personal venture by only appointing relatives and friends. Still, other NGOs were extensions of political parties and religious, sectarian or ethnic movements. The official added that many Iraqi NGOs are lacking in democratic practice and their leading bodies are not chosen through election; many also do not make any initiatives and are poor at the intellectual and practical levels. On the other hand, many Iraqi civil society organizations are preparing to wage a vast campaign against the draft law when the parliament’s begins its discussion of the draft law.  CIVICUS, the international civil society organization, has already prepared comments on the draft legislation, urging that it not be adopted in its current form.

 

kws

Non-Profit Coop Option for Health Care Reform Gaining Traction?

The Associated Press reports that Senator Charles Grassley (R-Iowa), ranking minority member of the Senate Finance Committee and part of the "Group of Six" senators that have been trying to fashion a bi-partisan health care reform proposal, stated this morning on CNN that non-profit cooperatives may be how to resolve the lack of insurance coverage for millions of Americans.  Senator Max Baucus (D-Mont.), chair of the Senate Finance Committee and also a member of the Group of Six, has proposed such a solution to the group.  This continued interest in this proposal, which we previously blogged about, raises two questions in my mind.

First, how well do the rural agricultural cooperatives, touted as the model for health care cooperatives, really work and is that experience transferable to the health care context?

Second, will the President embrace this option when he speaks to Congress and the nation tomorrow?

LHM

Canadian Charity Group Threatens Lawsuit to Get Hundreds of Millions in Gambling Revenues

The Vancouver Sun reports that the British Columbia Association for Charitable Gaming is threatening to sue the British Columbia government for failing to pay over the share of gambling revenues allegedly owed to charities.  According to the association, the provincial government pledged in a 1999 Memorandum of Understanding to transfer at least 33 percent of net gambling revenues to charitable organizations.  The story reports that according to the government's own annual reports, the transfers to charities have been below this amount for at least the past six years.  While the shortfall was relatively small initially, with 30 percent of C$438.6 million in net gambling revenues transferred in 2003-04, the percentages have declined to 19 percent of $834.3 million in 2008-09 and a proposed 15 percent of C$1.08 billion budgeted for 2009-10.  The minister in charge of Housing and Social Development, and therefore the gaming revenue and charity grants, asserts that certain grants are not counted in these figures but otherwise has not apparently responded to the charges.

LHM

Mory's a Charity?

This story may only be of interest to those who attended Yale at some point, but the Yale Daily News reports that the IRS has recognized Mory's, the historic eating club located in the heart of the Yale University campus, as a tax-exempt, section 501(c)(3) organization.  According to its website, "Morry's is, at its most elemental level, a private dining club, serving lunch and dinner to its members and their guests each Monday through Saturday."  I can only assume that is no longer completely accurate - or at least membership is not all that exclusive, even though it requires nomination by a current member.  Membership is open to a relatively broad array of people who are able to secure such a nomination, including both current and past students, faculty, and some staff. 

The IRS ruling has clear value to the organization - the same story reports that once the ruling became known it received $170,000 in donations over two days. 

(Full disclosure:  While I am not a Mory's member, I have eaten there once.  Since I was meeting with one of my references for my academic job search, I have to confess I remember very little except that it definitely had atmosphere (and was crowded)).

LHM

LSU & Tulane Approve New Orleans Public Teaching Hospital

Buried among the many stories covering the recent four year anniversary of Hurricane Katrina hitting New Orleans was an ambitious joint venture by Louisiana State University, Tulane University, and other area universities to build a new $1.2 billion public teaching hospital.  As reported by the Associated Press (in a story published on Forbes.com), the need for new hospital arose because Hurricane Katrina damage forced the closure of the LSU-run state Charity Hospital. 

Key to proceeding with the new hospital was a governance agreement among the participating schools that gave LSU four out of eleven board members at the nonprofit that will run the new hospital.  Tulane and Xavier University, which will also train medical students at the hospital, will each have one slot, and a third slot will rotate among three other New Orleans universities.  According to New Orleans Times-Picayune story, a six-member committee evenly divided between three LSU-appointed board members and the three board members chosen by the other schools will select the remaining four members, with the LSU member chair able to break tie votes.  These four members would be considered independent and not affiliated withe either any of the participating schools or any other area hospitals.

LHM

IRS Provides FAQs on Reporting Foreign Activities

As part of its occasional series of FAQs for various sections of the new Form 990, the IRS has published Form 990 Filing Tips: Reporting Foreign Activities (Schedule F).  The FAQs cover common questions such as what exactly needs to be reported on this schedule, with what level of detail - including if recipients of funds needs to be reported even if they U.S. citizens, and so on.

LHM 

More on Executive Compensation

The Boston Globe reports that Massachusetts Attorney General Martha Coakley unveiled plans to closely scrutinize executive compensation in the state's nonprofit health care sector.  This is interesting for a couple of reasons.  First, it seems to belie what I often tell my Nonprofit Law students about the lack of scrutiny of nonprofit organizations at the state level.  In my home state of North Carolina there are plenty of laws and reporting requirements on the books, but no one in state government seems to pay attention unless an enterprising newspaper reporter sniffs out a scandal.  In contrast, Massachusetts has a history of holding nonprofits' feet to the fire.

Second (and I realize this second point may partly contradict the first), it raises the question whether such intensified scrutiny of nonprofits is tied to political ambition.  When I was practicing law in Boston in the early '90s, the then-Attorney General Scott Harshbarger spearheaded a high-profile effort to examine compensation and conflicts of interest in Massachusetts' educational nonprofit sector.  Harshbarger landed some big fish, including the then-President of Boston University, John Silber.  If memory serves, Harshbarger wasin the process of lining himself up for a run for governor at the time.  It may or may not be a coincidence that Martha Coakley's plans to rein in nonprofits coincides with her announcement that she is seeking the United States Senate seat left open by Ted Kennedy's passing.  

I have heard it said that the initials A.G. stand for "aspiring governor."  Is that why Massachusetts nonprofits are coming under scrutiny at this particular time, or is it merely evidence of a rare state that takes its monitoring responsibilities seriously?

TAK

Joseph Kennedy, Social Enterprise, and Executive Compensation

A New York Times article reports intense speculation over whether Joseph Kennedy, former congressman from Massachusetts and son of Robert F. Kennedy, will run for his uncle Teddy's seat in the United States Senate.  The article mentions in passing that Joseph has run a nonprofit organization, Citizens Energy Corporation, since leaving office.  I would wager that the history and current activities of Citizens will become a campaign issue if Joseph declares for the Senate. 

Citizens was a hybrid social enterprise before the lingo existed to describe it.  When I first encountered it in Boston in the late 1980s, it was clear that its mission was mixed.  It ran programs to furnish low-cost heating oil to low and middle income families in Massachusetts, but it was housed in fancy corporate office space, paid salaries competitive with the private sector, and was heavily involved in what sounded to me like for-profit oil trading.  Indeed, the Times article mentions that Joseph's annual salary is upwards of half a million dollars. Surely his political opponents will pounce on that.

TAK