Nonprofit Law Prof Blog

Follow up on the GOP tax bill repealing the Johnson Amendment

    Last week the proposed GOP tax bill allowing churches to endorse political candidates while maintaining their tax-exempt status was expanded. The expanded version of the provision includes all 501(c)(3) organizations. The expanded provision was passed by the House Ways and Means Committee on Thursday. "A summary of the final bill states that no group would lose its non-profit status 'because of engagement in certain political speech, as long as the speech is in the ordinary course of the organization’s business' and the organization's political expenditures are minimal." Some people are worried that taxpayers will now switch their donations from political organizations to 501(c)(3) organizations to save the donors some money on taxes. If this happens the joint committee predicts that the U.S. Treasury Department would lose about 2.1 billion dollars over 10 years. To learn more about the effects of the expanded provision click here: https://www.usatoday.com/story/news/politics/2017/11/10/tax-bills-repeal-johnson-amendment-could-cost-taxpayers-more-than-1-billion/852554001/

 

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GOP Tax Bill Allowing Churches to Participate in Political Activity

    The new tax bill proposed in Congress has a provision that would allow churches to endorse political candidates while keeping their tax-exempt status. The provision would deny the IRS money to enforce denial or revocation of churches tax-exempt status for participating in political activity. The provision does not mention if other nonprofit organizations, or even synagogues or mosques will be safe from revocation of their tax-exempt status. Some people are opposed to the provision because they deem it as unfair advantage to Christian churches to funnel money into political campaigns. Republicans in support of the provision argue that, “the law is enforced unevenly, leaving religious leaders uncertain about what they are allowed to say and do.” Some Democrats in opposition to the provision argue that, “the measure comes too close to mixing church and state. Religious leaders already have First Amendment rights, just like anyone else, but if they want to get political, they don’t have a constitutional right not to pay taxes.” To learn more about the proposed tax bill and the effect of this provision click here: https://www.pbs.org/newshour/politics/republicans-push-bill-let-churches-endorse-political-candidates

 

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Churches and Their Support of Political Candidates

    Churches are automatically 501(c)(3) organizations, and as a result, they don’t need to apply to receive their tax-exempt status. Like all 501(c)(3)’s, churches are prohibited from directly or indirectly participating in ant political campaign on behalf of any candidate for elective public office. They are also prohibited from making any contribution to a political campaign fund. Engaging in these activities may result in denial or revocation of their tax-exempt status. However, in 2014, over 1600 pastors participated in a movement called “Pulpit Freedom Sunday”, where they made election speeches and sent tapes of the speeches to the IRS. The IRS responded by issuing Revenue Ruling 2007-41 which gives examples of proper and improper political activity. Some examples of proper political activity include: Ministers can endorse candidates if they do not make the endorsement at an official church function, in an official church publication, or otherwise use the churches assets, and do not state that they are speaking as a representative of their church. Candidates can also come speak at churches if all candidates running for an office have equal access and the church does not endorse any of them. To learn more about what types of political activity churches can engage in click here: https://www.forbes.com/sites/peterjreilly/2015/09/20/tax-rules-forbid-churches-endorsing-candidates/#3bc0dee264e7

 

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The Effects of Citizens United on Nonprofit Organizations

    The Supreme Court decision in Citizens United removed the restrictions on independent spending in elections by corporations. Now, a great deal of the money contributed to political candidate’s campaigns comes from corporations. Some corporations are nonprofit entities, like 501(c)(3)s, which tax-exempt status forbids them from getting involved in political activity. There has been public controversy over 501(c)(4) organizations and whether they must disclose their donors to the public. Although, the case says that constitutionally nonprofits can contribute to candidate’s campaigns the tax code still forbids 501(c)(3) organizations from endorsing candidates, or make independent expenditures suggesting who the better candidate is. Also, if political activity is deemed to be the primary purpose of 501(c)(4) organizations the IRS can potentially tax these organizations. Finally, for 527 organizations, corporations can make unlimited expenditures to political organizations (super PACs). For more information on the effects of Citizens United on nonprofit organizations click here: https://bolderadvocacy.org/citizens-united or here: https://ssir.org/articles/entry/citizens_united_and_new_rules_for_nonprofits

 

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Citizens United v. Federal Election Commission

    Citizens United, a 501(c)(4) organization, sued the Federal Election Commission seeking injunctive relief because they feared that they would be subject to civil and criminal penalties if it made a documentary against a presidential candidate within 30 days of the primary election in 2008. The issue in this case is whether a law that made it illegal for a corporation (for-profit or nonprofit) to release a movie endorsing a candidate 30 days before the election was constitutional. The supreme court of the United States held that the law was unconstitutional. The court held, “the government may not, under the First Amendment, suppress political speech on the basis of the speaker’s corporate identity, the federal statute barring independent corporate expenditures for electioneering communications violated the First Amendment.” By holding this law unconstitutional the supreme court allows nonprofit organizations to get involved in politics, but some nonprofit’s statutory criteria strictly forbid this and could endanger their tax-exempt status.  Citizens United v. Federal Election Com’n, 130 S.Ct. 876-77 (2010). To read the entire case, click here: http://caselaw.findlaw.com/us-supreme-court/08-205.html

 

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What is a Political Organization

    A 527 organization/political organization is a political organization. A political organization is defined as a party, committee, association, fund, or other organization organized and operated for the primary purpose of directly or indirectly accepting contributions or making expenditures, for an exempt purpose. These organizations are not fully tax exempt. They must pay taxes on income from sources other than contributions, membership dues and fundraising events. This kind of income usually comes from passive investments, like interest, dividends, and capital gain. Political organizations are organized to influence the selection, nomination, and election of political candidates to government offices. The primary example of a political organization are political action committees or super PACs. Donations to these organizations are not tax deductible. To learn more about these organizations, click here: https://www.irs.gov/pub/irs-tege/eotopici89.pdf

 

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What is a 501(c)(4) Organization?

    A 501(c)(4) organization is an organization that is exempted from federal income taxation. These organizations can be civic leagues or organizations not organized for profit, but operated exclusively for the promotion of social welfare, or local associations of employees, the membership of which is limited to the employees of a designated person or persons in a municipality and the net earnings of which are devoted exclusively to charitable, educational, or recreational purposes. An organization that is operated exclusively for the promotion of social welfare if it primarily engaged in promoting the common good and general welfare of the community. If the organization primarily benefits a private group of citizens it cannot qualify as a 501(c)(4) organization. Donations to these organizations are not tax deductible. To learn more about these organizations, click here: https://www.irs.gov/pub/irs-tege/eotopici03.pdf

 

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What is a 501(c)(3) Organization?

    This week I'm writing a series of blog posts that go together. The first part of the week will be dedicated to introducing some of the different types of non-profit organizations. Once the different organizations are introduced I will examine the Citizens United case and the effects that case had on the different organizations.

 

    A 501(c)(3) non-profit organization is an organization that is organized for a tax-exempt purpose, and operates exclusively for a tax-exempt purpose. These organizations must avoid any private inurement, avoid substantial lobbying, and avoid any political activity. These can be any corporation, fund, or foundation that is organized exclusively for religious, charitable, scientific, public safety, literary or educational purposes, amateur sports, or for the prevention of cruelty to children or animals. These organizations are exempt from federal income taxation if no individual shareholder derives a personal profit from the operation of the organization. These organizations cannot generate personal profit or any other benefit for individuals or shareholders or engage in political campaigns, including endorsing candidates or influencing legislation. However, they can engage in voter education, registration, and get out and vote drives if they are non-partisan in nature. They may also expend up to one million dollars to lobby for legislation if they declare this money to the IRS.  501(c)(3) organizations must maintain records of finances for public inspection, allow for taxation on unrelated business income, and file a form 990. Any donations made to these organizations is tax deductible. Churches are automatically 501(c)(3) organizations. To learn more about these organizations, click here: https://non-profit-organization.laws.com/501c3

 

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Aprill on the Tax Consequences of Legal Defense Funds

Ellen P. Aprill (Loyola-Los Angeles) has written a short piece on the Tax Consequences of Legal Defense Funds. From the article:

LDF trusts raise questions as to tax treatment of the trust,  whether the trust can take advantage of special rules applicable to political organizations, whether contributions to the LFD trusts can be deemed gifts excluded from the official’s income, whether donors to LDF trusts are subject to gift tax liability,  whether the government official must report amounts distributed from the fund for legal expenses as income, and the extent to which deductions are available to the government officials for amounts expended from the trust on his or her behalf.

Lloyd Mayer

Brunson & Herzig: Religious Tax Exemptions after Obergefell

Samuel D. Brunson (Loyola-Chicago) and David J. Herzig (Valparaiso) have written A Diachronic Approach to Bob Jones: Religious Tax Exemptions after Obergefell, 92 Indiana Law Journal 1175 (2017). Here is the abstract:

In Bob Jones University v. United States, the Supreme Court held that an entity may lose its tax exemption if it violates a fundamental public policy, even where religious beliefs demand that violation. In that case, the Court held that racial discrimination violated fundamental public policy. Could the determination to exclude same-sex individuals from marriage or attending a college also be considered a violation of fundamental public policy? There is uncertainty in the answer. In the recent Obergefell v. Hodges case that legalized same-sex marriage, the Court asserted that LGBT individuals are entitled to “equal dignity in the eyes of the law.” Constitutional law scholars, such as Laurence Tribe, are advocating that faith groups might lose their status, citing that this decision is the dawning of a new era of constitutional doctrine in which fundamental public policy will have a more broad application.

Regardless of whether Obergefell marks a shift in fundamental public policy, that shift will happen at some point. The problem is, under the current diachronic fundamental-public-policy regime, tax-exempt organizations have no way to know, ex ante, what will violate a fundamental public policy. We believe that the purpose of the fundamental-public-policy requirement is to discourage bad behavior in advance, rather than merely to punish it after it occurs. As a result, we believe that the government should clearly delineate a manner for determining what constitutes a fundamental public policy. We recommend three safe harbor regimes that would allow religiously affiliated tax-exempt organizations to know what kinds of discrimination are incompatible with tax exemption. Tying the definition of fundamental public policy to strict scrutiny, to the Civil Rights Act, or to equal protection allows a tax-exempt entity to ensure compliance, ex post. In the end, though, we believe that the flexibility attendant to equal protection, mixed with the nimbleness that the Treasury Department would enjoy in crafting a blacklist of prohibited discrimination, would provide the best and most effective safe harbor regime.

Lloyd Mayer

Chodorow on Gaylor v. Mnuchin (minister housing allowance case)

Adam Chodorow (Arizona State) has written a brief analysis of Gaylor v. Mnuchin for the ABA Tax Times. titled A Step Toward Greater Clarity on Clergy Tax Exemptions? Here is the first paragraph:

On October 6, 2017, the U.S. District Court for the Western District of Wisconsin declared section 107(2) of the Internal Revenue Code unconstitutional. The provision permits “ministers of the gospel” to exclude from income compensation designated as a housing allowance, thus giving churches and other religious organizations the ability to provide tax-free housing to their ordained ministers. The provision applies not only to parish priests living in modest housing, but also to televangelists like Joel Osteen, who currently lives tax-free in his $10.3 million mansion. It also applies to ministers who work in church-affiliated schools as teachers and administrators. This affords a significant benefit for certain schools whose religious tenets include the ministry of all believers. In one case, a basketball coach was entitled to exclude his housing allowance from income. The government foregoes around $800 million in revenue per year as a result of this provision, and, if the decision stands, it could have a significant impact on churches and other religious institutions.

Lloyd Mayer

Cummings & Rawhouser: Lawyers and Bar Associations as Influencers in the Negotiated Landscape of Social-Business Hybridization

Michael E. Cummings (Arkansas Business) and Hans Rawhouser (UNLV Business) have written Lawyers and Bar Associations as Influencers in the Negotiated Landscape of Social-Business Hybridization, 17 Wyoming Law Review 457 (2017). From the introduction:

To complement prior legal scholarship on the Benefit Corporation and L3C movements—which focused on comparing the nuances in various states’ legal approaches, or compared firms’ adoption rates across jurisdictions—this article focuses on understanding the various interests that shaped these laws in different states. This article analyzes a diverse and content-rich product of the legislative process: transcripts and written testimony from over 100 separate committee hearings and legislative floor debates. This approach to understanding the legislative process helps identify patterns and tensions between actors with similar but divergent interests. Although these potential tensions are present between several different groups involved in this process, such as business owners, nonprofit leaders, legislators and other public officials, this article mainly focuses on the policy development involvement of the legal community—attorneys and bar associations.

Lloyd Mayer 

Nehme: Australian Charities and Not-for-Profit Commission

Marina Nehme (UNSW Australia) has written Australian Charities and Not-for-Profit Commission: Enforcement Tools and Regulatory Approaches, 45 Australian Business Law Review 79 (2017). Here is the abstract:

The Australian Charities and Not-for-profits Commission (ACNC) commenced operation on 3 December 2012 after a decade of inquiries and recommendations about the establishment of an independent “one-stop-shop” regulator for the charity sector. The introduction of this regulator is a move that recognises the unique and distinctive role that charities play in Australia. This article reviews the sanctions available to the ACNC. It considers some key aspects of the ACNC’s regulatory approach to date and discusses the benefits arising from this approach. The article then assesses whether the current enforcement regime available to the regulator supports the continued implementation of such a regulatory approach and empowers the ACNC to enforce the provisions in the legislation or whether some changes may be needed.

Lloyd Mayer

Reiser & Dean: Social Enterprise Law (Oxford University Press)

Dana Brakman Reiser and Steven A. Dean (both Brooklyn) have written Social Enterprise Law: Trust, Public Benefit and Capital Markets. Here is an overview:

• Controversial thesis: law can make corporations better citizens and make it easier for start-ups to raise capital by preventing insiders from selling out a social mission for increased profit
• Timely analysis: explores potential impact of new crowdfunding rules and increasingly popular hybrid legal forms such as the benefit corporation on the ability of start-ups to raise capital
• Provocative solutions: several chapters show how corporate governance, contract and even tax law can be harnessed to balance public good against private greed

Lloyd Mayer

Zelinsky: Taxing the Church (Oxford University Press)

Edward A. Zelinsky (Cardozo) has written Taxing the Church: Religion, Exemptions, Entanglement,and the Constitution (Oxford University Press). Here is an overview:

• Explores the taxation and exemption of churches and other religious institutions, both empirically and normatively
• Reveals that churches and other religious institutions are treated diversely by the federal and state tax systems
• Focuses on church-state entanglements with respect to taxing or exempting churches and other sectarian entities
• Discusses improvements that can be made in legal and tax policy trade-offs, such as the protection of internal church communications and the expansion of the churches' sales tax liabilities
• A clear, balanced, and comprehensive treatment of the topic that is broadly accessible to tax policymakers, lawyers, nonlawyers, judges, tax specialists, and even those with no background in the subject

For a review, see Peter J. Reilly on Forbes.

Lloyd Mayer

My Last (?) Post About the Section 501(c)(4) Application Controversy

[UPDATED 11/21/17 to add NY Times report of amount paid in one settlement.] Recent months have seen a flurry of developments indicating that this controversy is finally winding down.

First, two months ago the U.S. Department of Justice announced that it would not reopen the criminal investigation of former IRS Exempt Organizations Director Lois Lerner, to howls of fury from her critics in Congress.

Then the Treasury Inspector General for Tax Administration released a new report that found a number of left-leaning organizations that had applied for section tax-exempt status had also had their applications subject to additional review and/or been subject to unnecessary questions. The report did not undermine TIGTA's previous finding that the IRS had used inappropriate criteria to identify applications for additional scrutiny, or that many right-leaning organizations had been selected as a result of that criteria, but it muddied the waters regarding how politically biased the application process actually was and provided further support for the argument that the problems with that process likely reflected incompetence more than malevolent intent. (More coverage: Washington Post.)

Late last month the U.S. Department of Justice announced the settlement of two pending lawsuits relating to the controversy, including the one class action suit. According to a report by a CNN, the settlements did not involve the payment of any monetary damages but included an apology from the IRS. The NY Times later reported, however, that one of the settlements involved a seven-figure payment, although the exact amount and other details were not available.  The two settled cases (assuming court approval of the settlement in the class action case) are NorCal Tea Party Patriots v. IRS (the class action) and Linchpins of Liberty v. United States. (More coverage: Fox News, Washington Post.)  By my count there is still a pending lawsuit brought by True the Vote against the IRS, as well as Freedom Path's lawsuit against the IRS (set for trial in summer 2018), so this settlement is not quite the end of all litigation.

Finally, earlier this month IRS Commissioner John A. Koskinen reached the end of his 5-year term. Despite calls for his removal or even impeachment because of the IRS' handling of the controversy's investigation, President Trump chose not to ask him to step down and Congress did not take any steps to begin the impeachment process. The Administration has not nominated his successor, with Assistant Secretary for Tax Policy David Kautter currently serving as interim IRS Commissioner. Coverage: N.Y. Times.

Lloyd Mayer

 

24 States Shut Down Deceptive Veterans Charity

Officials from Illinois, New York, and other states announced earlier this month that approximately two dozen states have acted to dissolve VietNow National Headquarters, Inc., an Illinois nonprofit corporation. The grounds for the action against the section 501(c)(19) veterans organization was deceptive telemarketing solicitations that mislead potential donors regarding the use of donated funds, including the fact that less than five percent of such funds actually went to charitable programs. If the name looks familiar, it is because this is the organization involved in the 2003 (yes, 2003) Supreme Court of the United States case brought by Illinois against for-profit telemarketers for alleged fraud.

More specifically, the settlement agreement includes provisions requiring VietNow to dissolve and certain of its officers and directors not to ever work for or serve in a fiduciary position with any charitable organization, as well as provision for division of VietNow's few remaining assets. The agreement also notes that a total of 27 states had "expressed interest in VietNow's solicitation activities in their respective states," although only 21 states signed the agreement (and two more states entered into separate agreements with similar terms).

Lloyd Mayer

The Treasury/IRS To Do List (Priority Guidance Plan, TE/GE Workplan)

Last month the Department of the Treasury and the IRS released their 2017-2018 Priority Guidance Plan, listing the projects they hope to complete by June 30, 2018. A little over a month earlier the IRS had released its Tax Exempt and Government FY 2018 Work Plan. Together these documents provide a roadmap for most if not all that we are likely to see from Treasury and IRS relating to tax-exempt organizations, other than urgent guidance growing out of either current events or the passage of tax reform or other tax legislation.

The Priority Guidance Plan lists the following items specifically relevant to tax-exempt nonprofit organizations that are still in process:

• Updated revenue procedures on grantor and contributor reliance under sections 170 and 509, including updating to Revenue Procedure 2011-33 for EO Select Check.

• Finalization of regulations (proposed 8/7/08) under section 170 relating to substantiation and reporting of charitable contributions.

• Guidance under section 170(e)(3) regarding charitable contributions of inventory.

• Guidance related to church plans.

• Finalization of the regulations (proposed 2/19/16) relating to section 509(a)(3) supporting organizations.

• Guidance under section 512 regarding methods of allocating expenses relating to dual use facilities.

• Finalization of the regulations (proposed 2/6/14) under section 512 relating to computation of unrelated business taxable income for section 501(c)(9) employees' beneficiary associations.

• Guidance under section 4941 regarding a private foundation's investment in a partnership in which disqualified persons are also partners.

• Guidance regarding the excise taxes on donor advised funds and fund management.

• Finalization of the regulations (proposed 3/15/11) under section 6104(c) relating to state requests for information relating to tax-exempt organizations.

• Finalization of the regulations (proposed 8/5/09) under section 7611 relating to church tax inquiries and examinations.

The Plan also included what is now Revenue Procedure 2017-53, which updated Revenue Procedure 92-94 relating to equivalency determinations for foreign grantees under sections 4942 and 4945.

The Work Plan includes numerous projects for the 2017-2018 year, including:

• Implementing revisions to Form 1023-EZ, including a required activity description and additional questions on gross receipts, asset thresholds, and foundation classification, as well as continuing pre-determination reviews of a statistical sample of Form 1023-EZ applications.

• Continued movement of information from the Internal Revenue Manual to the Audit Technique Guides (ATGs) for Exempt Organizations webpage.

• Enhancement of compliance efforts through certain emphases (supporting organizations, previous for-profit entities, and private benefit/private inurement indicators), data-driven approaches, and referrals.

Lloyd Mayer

The Tax Reform Moving Target: The Shrinking Charitable Contribution Deduction (+ Slamming Rich (Private) Universities)

Given the uncertainty regarding whether Congress will enact tax reform, much less what will be in it, trying to analyze how it could affect charities and other tax-exempt nonprofits is probably a lost cause. But there are at least two aspects of the current proposals that are worth consideration, if only because they likely will resurface even if Congress does not enact them this time around.

Overall Changes Will Shrink the Charitable Contribution Deduction: Despite all the uncertainty, certain overall changes have remained constant: sharply increasing the standard deduction, lowering tax rates for at least some taxpayers, and reducing or repealing the estate tax. All of these changes will reduce or eliminate the importance of the charitable contribution deduction for many taxpayers and so reduce the incentives for charitable giving. How much? No one knows for sure, although the Indiana University Lilly Family School of Philanthropy made some estimates last May and the Tax Policy Center of the Urban Institute and Brookings Institution has made a more recent reduced giving estimate of between $12 billion and $20 billion in 2018 giving based on the House bill).

Today's Bad Guys: Rich (Private) Universities: Several provisions that provide modest revenues are targeted at wealthy colleges and universities, including a small investment income tax on large (relative to student population) endowments. In addition, several more general provisions would hit colleges and universities particularly hard, including the elimination of tax-exempt bonds as a source of financing for tax-exempt charities, an excise tax on compensation over $1 million paid by tax-exempt entities, and the repeal of many education-related tax benefits. It appears, however, that some of these provisions do not reach public colleges and universities, specifically the endowment investment income tax and the tax-exempt bond financing provisions. If not rectified, these differences would give public colleges and universities an advantage over their private counterparts, although how significant and advantage is unclear. For more, see the National Association of College and University Business Officers (NACUBO)'s website summarizing and raising concerns about these and other education-related tax reform provisions.

For more coverage from a nonprofit perspective, see Independent Sector and the Council on Foundations.

Lloyd Mayer

House Republicans' Tax Bill Preserves Charitable Contribution Deduction, But Will It Be Less Utilized?

According to The New York Times (here and here), Republicans in the House of Representatives release proposed legislation today that would institute some significant changes to the Internal Revenue Code.  Although the tax bill preserves the charitable contribution deduction, significant changes to the standard deduction may result in even less taxpayers itemizing their deductions.  The proposed tax bill nearly doubles the amount of the standard deduction and eliminates the personal exemption.  Presently, approximately 30% of filing taxpayers elect to itemize their deductions. According to the Tax Policy Center, 84% of taxpayers who currently elect to itemize would take the standard deduction as proposed under this bill. 

According to The Washington Post, the National Council of Nonprofits warned that charitable deductions will decrease under this legislation as many middle- and upper-middle-class taxpayers would likely not elect to itemize, thus losing any tax benefit of making charitable contributions. Republicans counter that assertion by concluding that such taxpayers should give more to charities due to decreased tax bills.  Stay tuned for more response from the charitable sector as well as calculated effect of the proposed change on the charitable contribution deduction.

-Nicholas Mirkay