Nonprofit Law Prof Blog

Happy Holidays, Tax Style

With a big red floppy hat tip to the TaxProf Blog, this Forbes article  brings tax geekiness to admirable new heights, as a tax lawyer tries to distract her children on Christmas Eve with a discussion of St. Nick's Form 1040-NR.    Do read the whole thing, but for our purposes here on the Nonprofit Prof Blog, here's the fun part:

The kids are pretty sure – and I agree – that Santa doesn’t intend to operate as a for profit business. But he likely doesn’t meet the criteria to be tax exempt under section 501(c)(3) of the Internal Revenue Code. By default, that would make his venture for profit for purposes of IRS (whether he wants to make money or not) and therefore, taxable.

Even if Santa’s toy distribution scheme were to be classed as a non-profit, there may be other unrelated trade or business income… As noted earlier, my house isn’t sure where Santa gets his money. Clearly, he isn’t paid for his services though my kids question the value of cookies and milk left out for him (that is, as my seven year old noted, a LOT of cookies). Since we’ve seen a lot of Santa merchandise in stores, we’ve worked out that we think he gets some licensing revenue for his own image and also for Rudolph – kind of like Pixar does for Lightning McQueen and Buzz Lightyear. That income would be taxable to the extent that it’s not offset with expenses. So, assuming all of this, what’s deductible?

So here's my question, would Santa's operations qualify for Section 501(c)(3) status?  I mean, clearly he could structure his licensing revenue as a royalty exempt from UBIT and even drop it into a for profit sub if need be.  I don't really see an inurement or a private benefit issue - surely, all good kids in the world constitute a charitable class.   He's not been lobbying as far as I know, so barring a big political endorsement, I'm not seeing the issue.  So does Santa just need good nonprofit counsel?

Merry Christmas (a day late) to all who celebrate, and a joyous New Year to all. 

EWW

 

 

Is the charitable tax deduction an efficient means for incentivizing donations?

With the end of the year looming, many Americans find themselves deliberating over which charity they should write a check to. Why? For at least some people who actually believe this to be true, the reason is often the charitable tax deduction.

A December 2012 Marketplace article explained the “holiday season is the time when many Americans do their end of the year charitable giving. A third of American tax payers itemize deductions and 80 percent of those Americans take advantage of the charitable tax deduction.” The phenomenon that is end of the year giving and the benefits of the charitable tax deduction were revisited in a Marketplace article from earlier this week.

The recent article traces the genesis of the charitable tax deduction back to the Gilded Age, “a time when a small group of Americans were making very large amounts of money, and giving some of it away to start schools and museums and libraries and fund other causes they cared about.” The article provides that with the start of the First World War in 1917, U.S. Senator Henry French Hollis was worried Congress’ plans to finance the war by raising the top rate of the income tax from 15 percent to 77 in only a few years would have an adverse affect on philanthropy. Hollis worried the wealthy would stop donating because he believed people usually “’contribute to charities out of their surplus. After they've done everything else they want to do, after they've educated their children and traveled and spent their money on everything they really want or think they want, then, if they have something left over, they will contribute.’”

The article explains the research on the degree to which the charitable deduction has actually affected the amount of money people give every year is divided, but the goal of the deduction, to incentivize charitable giving, has always been clear.

Does the charitable tax deduction incentivize charitable giving? If so, to what extent has it been successful?

http://www.marketplace.org/topics/wealth-poverty/why-do-we-have-charitable-tax-deduction-anyway

http://www.marketplace.org/topics/wealth-poverty/lot-give/roots-and-some-results-charitable-tax-deduction

dab

 

 

Is the IRS using nonprofits to regulate political activity?

A few days ago in an article from the Wall Street Journal, former chairman of the Federal Election Committee Bradley A. Smith claimed the IRS’ recently proposed rules for dealing with the political activity of nonprofits “would plunge the agency deeper into political regulation.”

Clearly frustrated with the new rules, Smith argues the rules disturb over 50 years of settled law and practice because they limit the ability of certain tax-exempt 501(c)(4) nonprofits to conduct nonpartisan voter registration and voter education. Additionally, Smith notes the rules place restrictions on nonprofit public communication over any aspect of a president’s judicial nominees between February 2 and the national Election Day.

Smith asks why the IRS is regulating political activity at all and suggests it is because “many Democratic politicians and progressive activist think the new rules limiting political speech by nonprofits will benefit Democrats politically.”

Smith goes on to claim “these progressives” have propagated “three myths” about 501(c)(4) organizations to further that end:

1. 501(c)(4)s are ‘charities,’ and doing political work abuses their charitable status;
2. 501(c)(4)s must be operated ‘exclusively for the promotion of social welfare,’ not politics; and
3. Political activities shouldn't get tax breaks.

Smith’s ultimate conclusion is that “to anyone concerned with public confidence in nonpartisan tax collection and preventing future IRS scandals, the solution is not more tax rules. It is for the IRS to get out of the business of regulating politics.”

http://online.wsj.com/news/articles/SB10001424052702303497804579239970456967130

 dab 

Should we eliminate the idea of the nonprofit sector?

In a Forbes article from earlier this week, the author calls into question the charitable purpose and tax-exempt status of prestigious schools like Harvard and Stanford. The author argues that the treatment of nonprofit organizations such as Harvard and Stanford is “problematic both practically—it costs the government billions of dollars in tax revenue every year—and philosophically, as it creates a paradigm that misunderstands the way many ‘nonprofit’ organizations operate and the role that for-profit corporations ought to play in society.” The author goes on to claim that the best solution is to “eliminate the very idea of the nonprofit sector.”

Essentially, the author claims it is incredibly easy for organizations to obtain tax-exempt status and that determining whether an organization is trying to make and distribute a profit as the basis for distinguishing between the private and voluntary sector is ineffective because nonprofits are also making and distributing profits.

What, if anything, would be the consequences of eliminating the idea of the nonprofit sector?

http://www.forbes.com/sites/joshfreedman/2013/12/10/the-nonprofit-sector-should-not-exist/  

dab 

Long & Hu: Tax Incentives for Charitable Donations of Non-Monetary Assets by Chinese Corporations

Zhaohui Long (Sun Yat-Sen University) and Xiaoling Hu have posted Research on Tax Incentives for Charitable Donations of Non-Monetary Assetsby Chinese Corporations, 3 Journal of Chinese Tax and Policy 21 (2013).  Here is the abstract:

Corporate donations form a substantial part of social charitable donations in China. Corporate non-monetary asset donations are important in this regard as they bring goods and materials to areas where they are desperately needed. However, the current scope and scale of corporate donations are narrow due to a lack of tax incentives. This paper will explain the incentive effects of the current tax regime by analyzing how asset donations are treated by Chinese taxation laws, from the perspective of macroeconomic policies and market demands. It particularly focuses on the relatively heavy tax burden and limited scope for tax exemptions on corporate asset donations in China. In light of this, we propose some pragmatic suggestions on incentivizing policies that are more suitable for China’s current situation, such as increasing the exemptions before tax and allowing exemptions to roll over to future years, developing incentive policies on indirect and property taxes, and establishing the mechanism for third-party price evaluation and equity donation regulation, etc

Lloyd Mayer

Rechberger et al.: Public Governance by Outcome-Based Contracting in Austria

Martina Rechberger, Sandra Stoetzer, and Dennis Hilgers (all Johannes Kepler University Linz) have posted Designing New Ties: Public Governance by Outcome-Based Contracting in Austria.  Here is the abstract:

Due to the growing relevance of output and outcome orientation in the public sector, contracts are becoming more important in public sector networks. Especially the core objects of cooperations between the public sector and non-profit organisations (NPOs) are to obtain a certain outcome, which is mainly due to fixed arrangements pointed out in contracts. What are the requirements for outcome-based contract design? How are outcome-based objectives implemented in contracts? What is the status of implementation of outcome-based contract management in Austria?

Lloyd Mayer

Hackney: A Response to "Tax Planning for Marijuana Dealers"

Philip Hackney (LSU) has posted No 'Fagin' School of Pickpockets Allowed - A Response to Professor Leff on Tax Planning for Marijuana Dealers, 99 Iowa Law Review Bulletin (forthcoming 2014).  Here is the abstract:

Professor Benjamin Leff argues in a forthcoming article entitled Tax Planning for Marijuana Dealers that a tax-exempt social welfare organization described in Internal Revenue Code section 501(c)(4) may sell medical marijuana without putting its exempt status in jeopardy. He argues that (1) the “public policy” doctrine applicable to charitable organizations under section 501(c)(3) does not apply to social welfare organizations, and (2) a social welfare organization may consider “community” law and ignore federal law in considering whether its activity meets the idea of social welfare. I argue that Leff is wrong and that the public policy doctrine applicable to charitable organizations applies to social welfare organizations equally. Tax-exempt organizations derive exempt status primarily by supplying significant public benefits. Violating federal, state or local law causes public harm; thus, any tax-exempt organization, including a social welfare organization, may not violate established public policy as a substantial purpose. Additionally, the “community” requirement for social welfare organizations is to ensure the organization is dedicated to a public purpose rather than a private one. Violating any law, including federal, is more likely to ensure an organization is operating for a private rather than public purpose. Contrary to Leff’s claim therefore, this article argues that a social welfare organization may not sell medical marijuana and maintain its exempt status.

Lloyd Mayer

Montague: The Law and Financial Transparency in Churches

John Montague (Hogan Lovells) has published The Law and Financial Transparency in Churches: Reconsidering the Form 990 Exemption, 35 Cardozo Law Review 203 (2013).  Here is the abstract:

Most tax-exempt organizations are required to file the IRS Form 990, an information return that is open to the public. The Form 990 is used by watchdogs and donors to learn detailed financial information about charities. However, churches are exempt from filing the Form 990 and need not disclose any financial information to the IRS, the public, or their donors. In December 2012, the Evangelical Council for Financial Accountability recommended to Senator Charles Grassley that Congress should preserve the exemption, despite recent financial scandals at churches.

Examining the legislative history, this Article argues that the primary function of the information return has become its utility to donors, and policymakers have recognized the role that public access can play in keeping nonprofits honest and efficient. Unfortunately, because churches do not have to be transparent or accountable, few of them are.

Using research and insights from sociology, this Article contends that because of their opacity and the unique nature of religious authority, churches are more likely to foster and shelter malfeasance. Churchgoers are unlikely to challenge leaders because doing so can endanger their position in the religious community, making it imperative that transparency be mandated by outside authorities. Ironically, increased transparency may actually be good for churches because, as studies suggest, it is likely to increase donations and because, by minimizing opportunities for financial improprieties, it may preserve the religious experience of churchgoers. In addition, transparency is consistent with the teaching of many Christian leaders and with the expressed preferences of a large portion of churchgoers.

Lloyd Mayer

The Green Bag Almanac & Automatic Revocation

Ross E. Davies has posted Preface 2013: The Capacity to be Taxed is the Capacity to Self-Destruct, Green Bag Almanac & Reader 1 (2013), detailing the automatic reovcation of the Green Bag Almanac & Reader's section 501(c)(3) tax-exempt status for failure to file annual returns and the saga of its attempt to reclaim that status.  Here is the abstract:

This is the eighth Green Bag Almanac & Reader. This year is a special one, though, for reasons given after our customary salute to our diligent board and before our customary confessions of editorial error. There are two big problems with this Almanac. First, it is late — printed in September 2013, not in the winter of 2012-13, as it should have been. Second, it is relatively plain and boring — it lacks both the elaborate design and the voluminously numerous entertaining tidbits featured in previous Almanacs. (The exemplary legal writing is still excellent, of course, as are the annual reviews on pages 19-78 below.) Both problems are our own fault, because we screwed up the Green Bag, Inc.’s taxes. Permit me to explain. The Green Bag, Inc. — publisher not only of this Almanac but also of the Green Bag (a law journal) and several other publications, as well as producer of such works of scholarly artistry as the Supreme Court Sluggers trading cards and a series of bobbleheads of Supreme Court Justices — was a not-for-profit corporation blessed by the IRS with limited tax-exempt status under section 501(c)(3) of the federal internal revenue code. We received our 501(c)(3) determination in 1998, shortly after the company was formed. But in August 2010 we lost it. Like many not-for-profits, the Green Bag, Inc. had been stupidly failing to engage in the fairly simple process of filing the required tax forms. As a result, when the IRS launched its automatic revocation system in 2010, we were one of the roughly 275,000 not-for-profits whose tax exemptions were revoked. Since then, we have developed a deeper appreciation for the old adage about it being easier to get into trouble than to get out of it, as this preface illustrates.

Lloyd Mayer

A Nasdaq for Nonprofits?

In a New York Times DealBook column, Andrew Ross Sorkin explores an interesting idea put forward by Lindsay Beck: is there a way to harness financial instruments to dramatically increasing funding resources for nonprofits.  Ms. Beck, who has a Wharton M.B.A. and founded a successful charity that aided female cancer survivors with pregnancy, has pursued the idea with a number of investment banks.  Based on the article, much work still has to be done to make it a reality and it is far from clear that the idea will prove to be a viable and successful one, but it and the other innovative financing ideas discussed in the column raise a host of intersting issues.  For example, what bodies of laws govern such instructions - federal and state securities laws, state charitable soliciation laws, both?  What remedies would aggrieved "investors" have?  What monitoring would be required or advisable?  Nevertheless, it is an interesting idea.

Lloyd Mayer

AP: "Law Shields Churches, Leaves Pensions Unprotected"

This story was a little while ago, but the Associated Press reported how the fact that church pension plans are exempt from many laws that normally regulate such plans has left many employees of church-affiliated entities, including hospitals, with little recourse when pension funds are severely underfunded.  This exemption includes not being covered by federal Pension Benefit Guaranty Corporation and not being subject to the Employee Retirement Income Security Act, or ERISA.  Based on the article, it appears this issue has been a particular problem at a number of Catholic-affiliated hospitals.

Lloyd Mayer

More Reactions to the Proposed 501(c)(4) Political Activity Regs

Additional coverage includes editorials from the Investor's Business Daily, the L.A. Times and the Washington Post and reports in Mother Jones  and the Nonprofit Quarterly.

Lloyd Mayer

Federal District Court Strikes Down Minister Housing Allowance as Unconstitutional

A federal District Court in Wisconsin has struck down the exclusion from gross income for vcertain housing allowances provided to "ministers of the Gospel" by Internal Revenue Code § 107 as a violation of the Establishment Clause.  As previously discussed here, the same court is also considering challenges to the church exemption from Form 990 filing and the alleged lack of IRS enforcement against churches for violating the political campaign intervention the prohibition.  As John Colombo has detailed in this space, the key question in all of these cases - including in the almost certain government appeal of the housing allowance decision - will be whether the plaintiffs have standing to even bring these claims.  For reasons Professor Colombo details, it is unlikely that they do.  As a commentator to the TaxProf Blog post on this story noted, the judge in the housing allowance case also previously ruled that the National Day of Prayer presidential proclamation was unconstitutional, only to have that case dismissed on appeal for lack of standing.  Nevertheless, this case and the other challenges are currently still alive and proceeding, although news reports state the judge has stayed her decision on the housing allowance pending appeal.

Media Coverage:  Forbes;  Huffington Post; see also the stories linked to in the above TaxProf Blog post.

Lloyd Mayer

Problems with Some Charities Founded by Wisconsin Athletes

The Green Bay Press Gazette reports that a review of 51 active or recently closed charities tied to Wisconsin athletes and professional teams revealed a mix of compliance and noncompliance with IRS filing requirements, a broad range of fundraising costs and revenues, and other issues.  For example, six of the charities have lost their tax-exempt status for failing to file the required annual return (Form 990) and several charities reported less than two-thirds of revenues going toward charitable activities (as low as 18 percent in one case), although in some cases that low percentage may reflect an intentional plan to build up reserves for a particular, future charitable purpose.  The charities ranged in size from several with over a million dollars in annual revenue to 16 active charities with less than $50,000 in annual revenue.  As noted in the story and detailed in separate USA Today report, the most prominent set of concerns may belong to the LeRoy Butler Foundation, which is currently the subejct of an IRS and federal grand jury investigation apparently stemming from its multi-year failure to file IRS returns and payments of "appearance fees" and provision of other benefits to its namesake.  Overall, these reports appear to reveal a broad range of typical charity successes and failures among this subset of charities.

Lloyd Mayer

U.S. Navy Veterans Association Former Head Guilty of 23 Counts; Faces Minimum of 10 Years in Prison

The Tampa Bay Times reports that an Ohio jury has found John Donald Cody guilty of 23 counts of fraud, money laundering and theft relating to his role as head of the U.S. Navy Veterans Association.  As previously detailed in this space, the Association was a sham charity that Cody ran under the stolen name of Bobby Thompson and used to raise over $100 million before being exposed in 2010 by the newspaper (then named the St. Petersburg Times).  Sentencing is scheduled for mid-December.  Prosecutors have already obtained a guilty plea from one other person involved in the scam, who is now serving five years in an Ohio prison, and they have stated they plan to indict the lawyer they alleged also helped.

Lloyd Mayer