Nonprofit Law Prof Blog

NRA Admits to "Excess Benefits"

As previously blogged, the National Rifle Association and its executives continue to be under fire for excess personal benefit.  The Washington Post reported yesterday:  "After years of denying allegations of lax financial oversight, the National Rifle Association has made a stunning declaration in a new tax filing: Current and former executives used the nonprofit group’s money for personal benefit and enrichment."  In its 2019 Form 990 (not yet publicly available), the NRA confirmed its ongoing internal review of alleged "excess benefits" being paid to its chief executive Wayne LaPierre and five other former executives.  According to the Post article, the NRA disclosed in the tax filing that it “became aware during 2019 of a significant diversion of its assets.”  In its Form 990, the NRA estimates it paid nearly $300,000 in travel expenses on behalf of LaPierre between 2015 and 2019 and treats the payments as automatic excess benefits under Treasury Regulations section 53.4959-4(C).  In addition, the NRA states that LaPierre has repaid this excess benefit plus interest to the organization, concluding that the excess benefit has been corrected.

This new revelation comes four months after the attorney general of New York state filed a lawsuit accusing LaPierre and other NRA executives of misappropriating organization funds for decades, resulting in them receiving inflated salaries and large expense accounts.

(See also:  CNN, The Hill)

Nicholas Mirkay

 

 

Sidel & Moore: The Law Affecting Civil Society in Asia

Mark Sidel (Wisconsin) and David Moore (International Center for Not-for-Profit Law) have posted The Law Affecting Civil Society in Asia:  Developments and Challenges for Nonprofit and Civil Society Organizations.  Here is the abstract:

Asia presents a paradox. Many of the more than forty countries in this vast region are home to
vibrant civil society sectors, engaged in everything from social services to advocacy to mutual
benefit activities and other pursuits that fall within the definitions of non-profit or charitable
activity. Yet in many countries of Asia, government regulatory controls on civil society are
restrictive or highly restrictive. Indeed, based on reports from countries as diverse as India,
China, Malaysia, Thailand and Vietnam, among many others, the legal operating environment is
becoming more restrictive, particularly for advocacy and other groups engaged in independent
civil society activity.

Nicholas Mirkay

 

E. Jensen: College Athletics and UBIT

Erik Jensen (Case Western Reserve) has published College Athletics and the Tax on Unrelated Business Income: Will 'Student Athletes' Still Be Students After the NCAA Changes Its Rules? in the Journal of Taxation of Investments.  Here is the abstract:

This article considers the effects of the California Fair Pay to Play Act—permitting a student athlete at any California college, beginning in 2023, to profit from income generated by the athlete’s “name, image, or likeness”—and the NCAA’s apparent acceptance of that principle on the liability of big-time athletic colleges for the unrelated business income tax (UBIT). College athletic teams historically have not been subject to UBIT because of the pretense that the participants are student athletes. Although the Fair Pay to Play Act and the NCAA’s response might not yet require discarding that pretense, the probable next step—direct compensation by the colleges, beyond scholarships, for participation in athletics—will make characterization of many athletes as “student athletes” untenable.

Nicholas Mirkay

C. Ahn, J. Houston & S. Kim: The Role of Corporate Board of Directors in Public Charity Lobbying

Changhyun Ahn, Joel F. Houston, and Sehoon Kim (all of the University of Florida) have posted Hidden in Plain Sight: The Role of Corporate Board of Directors in Public Charity Lobbying. Here is the abstract:

Using IRS tax filings by public charities linked to lobbying disclosure and corporate board data, we show that charities with corporate directors on their boards spend more money on lobbying for the connected firms' industry interests. Firms with greater exposure to political risk and lobbying activities more often seek board connections with charities, and the effects of connections are stronger when charities are connected to such firms or when charities are constrained on funding. We rule out assortative matching between directors and charities by controlling for firm-charity pair fixed effects, and address concerns of reverse causality using director turnovers as shocks to firm-charity connections. Consistent with quid-pro-quo relationships between firms and charities, we find that connected firms benefit from increased procurement contracts, and that connected charities receive more grants and donations. Our results highlight executive charitable engagement as a hidden avenue for corporate political activities.

Lloyd Mayer

J. Andreoni & R. Madoff: Calculating DAF Payout

James Andreoni (San Diego) and Ray Madoff (Boston College) have posted Calculating DAF Payout and What We Learn When We Do It Correctly. Here is the abstract:

The tremendous increase in the use of donor-advised funds for charitable donations has led policy-makers to ask if there is sufficient regulation and oversight of DAFs. In the absence of account level reporting, the debate has focused on the average payout rates of DAF sponsoring organizations, which have been reported by the DAF industry to exceed 20%. We show that the industry-preferred method for calculating payout rate overstates the correct payout by more than 50%. We then argue that the flow rate is uninformative unless grounded in the stock of assets held by the DAF sponsor. We suggest a different measure of flow we call the stockpiling rate. Finally, we show that transfers between DAFSs cause DAF grants to be overstated. Reporting transfers separately would allow a more precise estimate of flow.

Lloyd Mayer

A. Ball: Social Enterprise Lawyering

Alina Ball (Hastings) has published Social Enterprise Lawyering in the UMKC Law Review. Here is the abstract:

Social enterprises — businesses that achieve an articulated social mission using market-based strategies — have commanded rare attention in the last decade of corporate law scholarship. The recent enactment of for-profit, mission-driven entity legislation across the country has inspired a significant production of legal scholarship on corporate law innovations and governance considerations within the social enterprise sector. However, this influx of social enterprise legal scholarship has not, surprisingly, translated into a scholarly examination of the methods and strategies that corporate lawyers use when representing social enterprise clients. The proliferation and sustainability of social entrepreneurship will undoubtedly require the assistance of corporate and transactional lawyers who are equipped to address the nuances that social entrepreneurship presents. This Essay uniquely addresses this gap in social enterprise legal scholarship by advocating for “social enterprise lawyers” — corporate lawyers who also intuit how the social justice objectives of their social enterprise clients impact each legal matter. Moreover, social enterprise lawyers, as defined herein, are those corporate lawyers who conduct their lawyering in a manner that is consistent with the social change ethos of social entrepreneurship. As social entrepreneurship challenges fundamental assumptions of standard business practices and theories, social enterprise lawyering invites a re-imagining of conventional corporate lawyering. This Essay hypothesizes that for the nascent social enterprise sector to reach its full potential, there must also be a rise of social enterprise lawyers.

Lloyd Mayer

C. Chapman, M. Homsey, N. Gillespie: A Longitudinal & Multinational Examination of Public Trust in Nonprofits

Cassandra M. Chapman, Matthew J. Homsey, and Nicole Gillespie (all from the University of Queensland) have published No Global Crisis in Trust: A Longitudinal and Multinational Examination of Public Trust in Nonprofits in the Nonprofit and Voluntary Sector Quarterly. Here is the abstract:

Recent high-profile scandals suggest the potential for a crisis of trust in charities, which could have negative consequences for the nonprofit sector as a whole. Although widespread, this crisis narrative has not yet been subjected to empirical examination. To assess the extent to which public trust has changed over time, we examined trust in nongovernmental organizations within 31 countries over nine consecutive years using data from the Edelman Trust Barometer (N = 294,176). Multilevel analysis revealed that, after allowing for differences in absolute levels of trust and trends across countries, there was actually a small increase in global trust in the nonprofit sector. This increase was sharper among men, people aged below 40 years, and people with higher education, income, and media consumption. Overall, we find no evidence of a crisis of trust in nonprofits; scandals within individual organizations have not affected sectoral trust.

Lloyd Mayer

B. Leff: Fixing the Johnson Amendment Without Totally Destroying It

Benjamin M. Leff (American) has posted Fixing the Johnson Amendment Without Totally Destroying It. Here is the abstract:

The so-called Johnson Amendment is that portion of Section 501(c)(3) of the Internal Revenue Code that prohibits charities from "intervening" in electoral campaigns. Intervention has long been understood to include both contributing charitable funds to campaign coffers and communicating the charity's views about candidates' qualifications for office. The breadth of the Johnson Amendment potentially brings two important values into conflict: the government's interest in preventing tax-deductible contributions to be used for electoral purposes (called "non-subvention") and the speech rights or interests of charities.

For many years, the IRS has taken the position that the Johnson Amendment's prohibition on electoral communications includes the content of a religious leader's speech in an official religious service — a minister may not express support or opposition to a candidate from the pulpit. For at least as many years, some commentators and legislators have found this application of the Johnson Amendment especially problematic, since it implicates directly the freedom of houses of worship speech and religious exercise. These Johnson Amendment critics sought to provide some carve-out from the Johnson Amendment's general application to permit speech that includes ministers' pulpit speech without creating a massive loophole for the Johnson Amendment's general prohibition on campaign intervention. Other commentators have long argued that a limited carve-out for certain types of speech is not possible — that permitting any communication of the organization's views, even in pulpit speech, would provide a massive loophole in the overall treatment of campaign contributions and expenditures.

This Article reviews the leading proposals to fix the Johnson Amendment, and finds them all lacking. It then proposes four types of modifications that could be used to properly balance the speech interests of charities (especially churches) with the government's interest in a level playing field for campaign expenditures (non-subvention). These proposed modifications include:

(i) a non-incremental expenditure tax,

(ii) a reporting regime,

(iii) a disclosure regime, and

(iv) a governance regime.

The Article concludes that in order to properly balance non-subvention with speech interests of charities, a modification of the Johnson Amendment should include some version of all four types of interventions.

Lloyd Mayer

GAO: Hospitals' Tax-Exempt Status

The U.S. Government Accountability Office has published Opportunities Exist to Improve Oversight of Hospital's Tax-Exempt Status. Here are the highlights of the report:

What GAO Found

Nonprofit hospitals must satisfy three sets of requirements to obtain and maintain a nonprofit tax exemption (see figure).

Requirements for Nonprofit Hospitals to Obtain and Maintain a Tax-Exemption

While PPACA established requirements to better ensure hospitals are serving their communities, the law is unclear about what community benefit activities hospitals should be engaged in to justify their tax exemption. The Internal Revenue Service (IRS) identified factors that can demonstrate community benefits, but they are not requirements. IRS does not have authority to specify activities hospitals must undertake and makes determinations based on facts and circumstances. This lack of clarity makes IRS's oversight challenging. Congress could help by adding specificity to the Internal Revenue Code (IRC).

While IRS is required to review hospitals' community benefit activities at least once every 3 years, it does not have a well-documented process to ensure that those activities are being reviewed. IRS referred almost 1,000 hospitals to its audit division for potential PPACA violations from 2015 through 2019. However, IRS could not identify if any of these referrals related to community benefits. GAO's analysis of IRS data identified 30 hospitals that reported no spending on community benefits in 2016, indicating potential noncompliance with providing community benefits. A well-documented process, such as clear instructions for addressing community benefits in the PPACA reviews or risk-based methods for selecting cases, would help IRS ensure it is effectively reviewing hospitals' community benefit activities.

Further, according to IRS officials, hospitals with little to no community benefit expenses would indicate potential noncompliance. However, IRS was unable to provide evidence that it conducts reviews related to hospitals' community benefits because it does not have codes to track such audits.

Why GAO Did This Study

Slightly more than half of community hospitals in the United States are private, nonprofit organizations. IRS and the Department of the Treasury have recognized the promotion of health as a charitable purpose and have specified that nonprofit hospitals are eligible for a tax exemption. IRS has further stated that these hospitals can demonstrate their charitable purpose by providing services that benefit their communities as a whole.

In 2010, Congress and the President enacted PPACA, which established additional requirements for tax-exempt hospitals to meet to maintain their tax exemption.

GAO was asked to review IRS's implementation of requirements for tax-exempt hospitals. This report assesses IRS's (1) oversight of how tax-exempt hospitals provide community benefits, and (2) enforcement of PPACA requirements related to tax-exempt hospitals.

What GAO Recommends

GAO is making one matter for congressional consideration to specify in the IRC what services and activities Congress considers sufficient community benefit. GAO is also making four recommendations to IRS, including to establish a well-documented process to ensure hospitals' community benefit activities are being reviewed, and to create codes to track audit activity related to hospitals' community benefit activities. IRS agreed with GAO's recommendations.

Lloyd Mayer

Independent Sector: Health of the U.S. Nonprofit Sector

Independent Sector has published a report titled Health of the U.S. Nonprofit Sector (free sign-up required to access).  Here is the Snapshot of the report's findings provided by IS:

• Nonprofits make up 5.5% of Gross Domestic Product (GDP)
• In 2019, Americans gave $450 billion to charity, but the number of donors continued a downward trend, declining by 3%
• Nonprofits make up 7% of total workforce and 10% of private workforce
• 59% of U.S. public trust nonprofits to do what is right
• Voters contacted by nonprofits turn out at rates 11 percentage points higher than comparable voters
• 7% of nonprofits are estimated to close due to the pandemic and almost 1 million nonprofit jobs have been lost

Lloyd Mayer

DAFs: Surge in Giving Amid Concerns, Proposals for Change at Federal & State Levels, Maybe New Regs Soon

There has been a lot of news recently relating to the quickly growing universe of donor-advised funds. A recent analysis by the Chronicle of Philanthropy reports that eight of the nation's largest community foundations have seen giving from DAFs they oversee increase by 42% from March to April of this year. And a recent study by the Lilly Family School of Philanthropy (pictured)  finds that seven of ten nonprofits surveyed have received DAF grants, even as many nonprofit leaders expressed concerns relating to seeking and processing DAF gifts, especially relating to communicating with donors who give through a DAF.

Not surprisingly, the growth and spread of DAFs continues to attract proposals for increasing oversight of and rules for them. Last month the Chronicle of Philanthropy reported that billionaire John Arnold and law professor Ray Madoff have joined forces as part of their Initiative to Accelerate Charitable Giving to propose a set of federal tax law changes that would, among other goals, accelerate giving from DAFs. Push back was quick, including from the Philanthropy Roundtable.

At the same time, proposals related to DAFs are also being made at the state level. For example, members of the California legislature continue to pursue possible DAF-related bills, as detailed by Gene Takagi earlier this year. And a recent attempt in California to pass a bill (AB 2936) that would have established a state-law category of DAF sponsoring organizations failed in August, according to CalNonprofits. In Minnesota, a new report by the Minnesota Council of Nonprofits recommends that state law there be changed to "require charitable trusts transferring funds to a donor advised fund (DAF) to include in their annual trust filing with the office of the attorney general an itemized list of all grants and contributions made or approved for future payment during the year from that DAF."

Regardless of whether any of these proposals advance, we do know that Treasury is working on regulations relating to DAFs. As tweeted by Gene Takagi, Cindy Lott said at the NAAG/NASCO conference to expect some sort of DAF regulations in the next few months.

Finally, the Stanford Law School Policy Lab on Donor Advised Funds published Are Donor Advised Funds Good for Nonprofits? in the Stanford Social Innovation Review (SSIR). That article follows an earlier SSIR podcast on How Nonprofits Are Leveraging Donor-Advised Funds.

Lloyd Mayer

Conservation Easement Battles Continue in Congress, DOJ, IRS, and the Courts

There is some much continuing activity relating to to conservation easements that it is difficult to keep track of everything. Fortunately, fellow blogger Nancy McLaughlin (Utah) has recently updated her comprehensive summary of court decisions, Trying Times: Conservation Easements and Federal Tax law (Sept. 2020). It undoubtedly will need to be updated for many years, as just last month taxpayers filed at least 27 Tax Court petitions relating to claimed conservation easement deductions according to Tax Notes (subscription required).

The Department of Justice has also provided more information in its lawsuit against promoters of syndicated conservation easements, including identifying 42 additional such deals, again according to Tax Notes. The Internal Revenue Service this week issued a memo emphasizing the use of summons and summons enforcement in syndicated conservation easement cases, among others, and  Chief Counsel recently issued a Notice providing further guidance about the settlement of such cases. Finally, Senators Grassley, Daines, and Roberts recently reintroduced the Charitable Conservation Easement Program Integrity Act targeting abusive conservation easement arrangements.

Additional Coverage: Washington Post ("Wealth investors seem to be exploiting land-conservation breaks, and the Senate is taking notice").

Lloyd Mayer

N.Y. Attorney General's Office Releases Guidance on Property Appraisals for Transactions

The Charities Bureau in the Office of the New York State Attorney General  recently released Guidance on Appraisals of Property for Not-for-Profit and Religious Corporations Seeking Approval of Property Transactions by the Attorney General or the Court. This guidance is particularly timely given that many nonprofits, in New York and elsewhere, are likely having to consider selling property in order to shore up their finances because of the pandemic.

Lloyd Mayer

Final IRC 512(a)(6) UBTI Siloing Regulations - No Surprises Here

The IRS yesterday issued final regulations under Internal Revenue Code section 512(a)(6) relating to the 2017 statutory requirement that exempt organizations silo their unrelated trades or businesses for various purposes, including the use of the net operating loss (NOL) deduction. The final regulations for the most part track the proposed regulations, including by:

• Continuing to use the first two digits of the North American Industry Classification System (NAICS) code to identify separate trade or businesses, without the additional option of a facts and circumstances test. The final regulations do add some additional guidance regarding how to identify the appropriate NAICS code for a particular trade or business, including use of the descriptions provided by more specific NAICS codes, and they also now permit changing NAICS codes, subject to reporting that change to the IRS.

• Continuing to reject a de minimis exception as outside the authority granted under the statute and inconsistent with congressional intent.

• Continuing to require allocation of deductions between unrelated trades or business on a reasonable basis standard, with some further guidance provided relating to allocation.

• Continuing to treat investment activities that are subject to the unrelated business income tax as a separate unrelated trade or business, with some minor clarifications and modifications relating to partnership and S corporation interests .

In response to comments received, the final regulations do make some technical modifications relating to the use of NOLs and to how UBTI is calculated for purposes of the public support tests under Internal Revenue Code sections 509(a)(1)/170(b)(1)(A)(vi) and 509(a)(2).

Also tracking the proposed regulations, the final regulations leave two significant issues outstanding but with future guidance promised to address them:

• The allocation of expenses, depreciation, and similar items shared between an exempt activity and one or more unrelated trades or businesses or between more than one unrelated trade or business.

• Application of the changes made to the Internal Revenue Code section 172 NOL deduction by the CARES Act.

The new regulations are effective as of the date of publication in the Federal Register.

Coverage: Bloomberg Law Daily Tax Report (subscription required); Tax Notes Today (subscription required).

Lloyd Mayer

COVID-19, Donations & Grants: Donations Up and Restrictions from Foundations Down

A recent report indicates that donors are increasing their giving in response to the challenges of 2020, including the pandemic. The Association of Fundraising Professionals' Fundraising Effectiveness Project reports that charitable giving in the first half of 2020 increased by 7.5% over the first half of 2019, a sharp increase after a decline for the first quarter of 2020 as compared to the first quarter of 2019. The number of donors also increased, by 7.2%, with an increase of 12.6% in new donors offsetting a decline in new retained donors. Coverage: Chronicle of Philanthropy (subscription required).

And according to a recent report from the Center for Effective Philanthropy, a survey of 236 foundations found that 66 percent had loosened or eliminated restrictions on existing grants since the pandemic began. A majority of respondents also reported that since the pandemic began they have reduced what is asked of grantees, made new grants as unrestricted as possible, and/or contributed to emergency funds. Coverage: Chronicle of Philanthropy (subscription required); The NonProfit Times.

Lloyd Mayer

COVID-19 & Museums: Deaccessioning Disputes and Grim Projections

It probably comes as no surprise that the pandemic is hitting museum finances particularly hard. Recognizing this fact and as reported by artnet, last spring the Association of Art Museum Directors temporarily loosened its guidelines on how members could use the proceeds of art sold from their collections. As artnet detailed, this led to a number of major museums announcing sales to shore up their finances.

But such moves risk controversy, as the Baltimore Museum of Art (pictured) found out. When it announced the sale of three paintings, including one by Andy Warhol, two trustees resigned in protest, two major donors reportedly decided to withhold $50 million in pledged funds, and criticism from other sources mounted, according to the Baltimore Sun. As that paper reported in a later story, this led to an emergency board meeting and cancellation of the sale only days before they were to occur.

Regardless of what particular museums do, the predictions for museums more generally are grim. The N.Y. Times reports that a new survey of 850 museum directors conducted in October found over half reporting their institutions had six months or less of financial operating reserves left, and that museums are overall operating at about a third of their capacity. Nearly one in three respondents said their institutions were at risk of permanent closure if additional funding was not found in the next 12 months.

Lloyd Mayer

EO Items from Treasury/IRS 2020-2021 Priority Guidance Plan

Yesterday the Department of the Treasury, the IRS, and the Chief Counsel's office released the 2020-2021 Priority Guidance Plan, listing the guidance projects that will be the focus of those offices' efforts from July 1, 2020 through June 30, 2021. There are no big surprises for those who have been tracking such items.

Here are the items most relevant to tax-exempt organizations, other than routine or ministerial guidance that is generally published each year, divided into (1) Tax Cuts and Jobs Act guidance, (2) items specifically listed under "Exempt Organizations," and (3) items from other headings that are relevant to tax-exempt organizations:

Implementation of Tax Cuts and Jobs Act (TCJA)

• Regulations on computation of unrelated business taxable income for separate trades or businesses under § 512(a)(6), as added by section 13702 of the TCJA, and allocation of certain expenses by exempt organizations with more than one unrelated trade or business. Proposed regulations were published on April 24, 2020.

• Final regulations under § 4960 [excise tax on annual compensation over $1 million and certain parachute payments paid by applicable tax-exempt organizations], as added by section 13602 of the TCJA. Proposed regulations were published on June 11, 2020.

• Final regulations on the excise tax on net investment income of certain private colleges and universities under § 4968, as added by section 13701 of the TCJA. Proposed regulations were published on July 3, 2019. RELEASED 09/18/20 on IRS.gov as TD 9917.

Exempt Organizations

• Guidance revising Rev. Proc. 80-27 regarding group exemption letters. Notice 2020-36 was published on May 18, 2020.

• Guidance on circumstances under which an LLC can qualify for recognition under § 501(c)(3).

• Guidance on additional deadline relief in response to the COVID-19 pandemic for applicable hospital organizations that are required to meet the community health needs assessment (CHNA) requirements under § 501(r)(3) of the Code. PUBLISHED 08/03/20 in IRB 2020-32 as NOT. 2020-56 (RELEASED 07/14/20).

• Final regulations on § 509(a)(3) supporting organizations. Proposed regulations were published on February 19, 2016.

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

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

• Final regulations under § 6104(c). Proposed regulations were published on March 15, 2011.

• Final regulations designating an appropriate high-level Treasury official under § 7611. Proposed regulations were published on August 5, 2009.

Other Items

• Guidance under § 170(e)(3) regarding charitable contributions of inventory. [Listed under Burden Reduction.]

• Regulations and other guidance under §§ 419A and 501(c)(9) relating to welfare benefit funds, including voluntary beneficiary associations (VEBAs). [Listed under Employee Benefits.]

• Final regulations on the fractions rule under § 514(c)(9)(E). Proposed regulations were published on November 23, 2016. [Listed under Partnerships.]

• Regulations under § 704(d) regarding charitable contributions and foreign taxes in determining limitation on allowance of partner’s share of loss. [Listed under Partnerships.]

• Guidance updating electronic filing requirements for exempt organizations [under §§ 6011(h), 6033(n)] . . . to reflect changes made by the Taxpayer First Act. [Listed under Taxpayer First Act Guidance.]

Lloyd Mayer

Election 2020: Post-Election Challenges and What the Election May Mean for Nonprofits

With the fading but still heated allegations about the 2020 election came at least two legal issues for Internal Revenue Code section 501(c)(3) charities seeking to be involved in the post-election litigation. One issue is to what extent charities can be involved in that litigation and related public debate without engaging in political campaign intervention. The Bolder Advocacy Program at the Aliiance for Justice provides helpful guidance on this point. But the other, perhaps more surprising issue, was whether 501(c)(3) Project Veritas may have put its tax-exempt status at risk during its attempts to find evidence of voter fraud. Fellow blogger Sam Brunson unpacks this issue over at The Surly Subgroup, concluding that if Project Veritas broke the law by helping and encouraging perjury by a Pennsylvania postal worker it may indeed have placed its tax-exempt status at risk.

But the bigger issue for most nonprofits is how the election may directly affect them or the positions they support. Before the election, the Chronicle of Philanthropy noted that the announced Biden tax plan "would steer aid to the poor but could deter some wealthy donors from giving." And in the wake of the election, the Chronicle of Philanthropy has collected a roundup of stories about how it is likely to affect philanthropy more generally. The consensus appears to be that incremental change is likely, with charities supporting more progressive policies cautiously optimistic but expecting a lot of hard work ahead.

UPDATE: The Chronicle of Philanthropy also just published an article with this headline: "Biden Transition Team Signals Big Role for Nonprofits Throughout Government." While that article is behind a paywall, the NonProfit Times has a list of over 40 nonprofit leaders that are among the 257 members of Biden's Agency Review Teams.

Lloyd Mayer

Election 2020: Pre-Election Walking Up To (and Over?) the 501(c)(3) Political Campaign Intervention Line

As happens every election season, in the run-up to the 2020 election there were a flurry of news stories about Internal Revenue Code section 501(c)(3) charities pushing up against, and maybe pushing through, the political campaign intervention prohibition. With over 65 years of guidance from the IRS, as meticulously compiled by  Steven H. Sholk of Gibbons P.C., you would think just about every possible situation has been addressed, yet charities and candidates continue to come up with new ways of walking right up to, and maybe crossing, that line.

For example, in mid-October the Washington Post reported on a closed-door session of conservative activists, including leaders of a number of 501(c)(3)s, discussing electoral tactics from challenging mail-in ballots to ballot harvesting. The story quoted nonprofit experts  Roger Colinvaux and Marcus Owens as being concerned that the involvement of 501(c)(3) leaders raised questions about their organizations' compliance with the political campaign intervention prohibition. In response, some of those leaders stated they were not there on behalf of the groups they lead.

At the more local level, in Kansas a state senate candidate included on his campaign signs not only that he had founded a church and thrift store, but also included the organization's logo. The candidate insisted that the sign was purely informational. But as I noted to the reporter who wrote the story, the problem is the inclusion of the group's logo, which constitutes the use of the charity's property for the candidate's benefit. And the story also reported appearances by the candidate at two churches, which did not provide his opponent with a similar opportunity to appear.

And of course there were other reports of more common but still problematic support of candidates. These included a Kansas state house candidate using mailing equipment owned by a church; his campaign reimbursed the church for the cost of that use, but it does not appear that the church made the equipment generally available for use by the public or other candidates on similar terms as required by IRS guidance. And a Catholic priest in Mississippi called then candidate Joe BIden "an embarrassment to Catholicism" from the pulpit in late October.

There is no indication that any of these events have led to adverse IRS attention, although of course the IRS has a number of years to pursue an audit or, in the case of the churches, a church tax inquiry.

Lloyd Mayer

Prairie View A&M University Receives $10 Million for Scholarships

A press release from Prairie View A&M University in Prairie View, Texas, has announced that a donor who wishes to remain anonymous has made a $10 million gift to the institution to fund scholarships for students struggling to complete their degrees during the pandemic.

The Panther Success Grants initiative will provide unrestricted funds to juniors and seniors impacted by the COVID-19 crisis, enabling them to remain enrolled and graduate on time. In-state, out-of-state, and international students all will be eligible to apply for a scholarship of up to $2,000 per semester and $4,000 per academic year — the average amount that Prairie View students with jobs contribute annually to their education. The university will give priority to students who are making satisfactory progress toward the completion of their degrees, as well as those whose finances and any financial aid they receive are insufficient to cover their college costs.

While enrollment at Prairie View is up slightly this fall, many students report that staying enrolled in school will be a challenge. University president, Ruth J. Simmons, opines that the scholarship assistance made possible by this gift "will be the critical difference in enabling these students to continue and complete their studies."

I certainly agree with Dr. Simmons and hope other anonymous donors will show up at more than a few more educational institutions.

Prof. Vaughn E. James, Texas Tech University School of Law