Nonprofit Law Prof Blog

Remembering John G. Simon

It is with deep sadness that I report John G. Simon (Yale) died earlier this month. Yale Law School posted a lengthy obituary, recounting his many contributions to the field of nonprofit law that he helped found. The National Center on Philanthropy and the Law at NYU also published an obituary remembering him. On a more personal note, John was instrumental in my successful entry into the academy. He graciously served as one of my references when I was on the academic job market, even though my direct interactions with him as a student were very limited. Fortunately for me, he had made the effort to become familiar with my nonprofit work while in practice and so could speak to that work, helping lead to a tenure-track position at Notre Dame.

Lloyd Mayer

Aprill: Governmental and Semi-Governmental Federal Charitable Entities

Ellen Aprill (Loyola L.A.) has posted Governmental and Semi-Governmental Federal Charitable Entities and Michelle Layser (Illinois) has posted a review of the article. Here is the article's abstract:

The standard view of the relationship between government and the nonprofit charitable sector treats them as separate and distinct. But they are not. Numerous federal agencies have statutory authority to receive tax-deductible charitable deductions. Their ability to do so, however, undermines the oversight accomplished through the Constitutionally-mandated appropriations process. Congress has also created many nonprofit tax-exempt organizations. These entities enjoy flexibility as to fundraising, investment, and spending that government agencies lack. However, they avoid the accountability that various federal statutes impose on government agencies, on the one hand, and that state nonprofit laws accomplish for private nonprofit organizations, on the other. At the same time, these Congressionally-established nonprofits retain significant governmental ties, such as service by government officials on their boards and reliance on appropriations. These practices produce at best a precarious balance between the governmental and non-governmental. Moreover, Congress has bestowed honorific charters on dozens of on pre-existing nonprofit tax-exempt organizations, a practice that can erroneously imply Congressional endorsement and oversight of these groups.

For the first time in the scholarly literature, this article examines all of these types of entities and the issues they raise under tax law, nonprofit law, constitutional law and administrative law. As one example, the Smithsonian Institution, the first and arguably the most prominent Congressionally-created nonprofit, engaged an independent review commission in 2007 to investigate widespread reports of inappropriate behavior by its then Secretary. The commission identified failures of governance and management, faulting the lack of federal common law regarding board duties and obligations. It questioned the ability of the Chief Justice and the Vice President to devote the hours required to discharge their fiduciary duties as Smithsonian Institution board members. It called for the Smithsonian, which is funded primarily by appropriations, to adopt procedures for transparency, disclosure, and compensation consistent with statutes governing federal agencies. The Smithsonian accepted some but not all of these recommendations. In particular, no change to its board structure has taken place.

Emphasizing issues of governance, the article makes specific recommendations to increase accountability of both government agencies and Congressionally-established nonprofit entities, such as urging Congress to curtail the widespread practice of appointing government officials to nonprofit boards. More fundamentally, it calls for acknowledgment of these hybrid entities. It argues for viewing government and charity as resting on a continuum rather than each floating in its own untethered conceptual space. This new approach clarifies our understanding of government, the nonprofit sector, and the relationship between them. Use of a continuum reminds us that our nation faces a choice between the private and public – or some mix of the two – in funding activities in which both government and charitable nonprofits engage.

Lloyd Mayer

Hackney: Testimony on Donor Disclosure and Campaign Finance Regulations

Philip Hackney (Pittsburgh) has posted his written testimony before a committee of the Pennsylvania House of Representatives on donor disclosure and campaign finance regulations. Here is the abstract:

The following is written testimony provided to the Pennsylvania House State Government Committee for a hearing entitled Donor Disclosure and Campaign Finance Regulations: Reviewing Recent Legal Precedents held on February 7, 2022. In 2021, the U.S. Supreme Court in Americans for Prosperity Foundation v. Bonta struck down as facially unconstitutional under the First Amendment a law in California requiring charities soliciting donations in the state of California to disclose substantial donors identified on Schedule B to the IRS Form 990. The Form 990 is the information tax return nonprofits must file annually to maintain their tax-exempt status. Schedule B collects from charities information about substantial donors. California argued it had a compelling interest in collecting the information in order to police fraud on charities. The Court, however, found that the law chilled the free association rights of donors without narrowly tailoring the law to the state of California’s governmental interest. Notably, this was neither a tax case, nor a campaign finance case. Nevertheless, the reasoning of the Court may impact the constitutionality of disclosure laws associated with both domains of law. I will first describe the reasoning of Americans for Prosperity Foundation, briefly discuss prior Court precedents on disclosure in the campaign finance regime, then describe the tax law obligations of the nonprofit organizations that tend to populate and dominate the space of the political in our country.

Lloyd Mayer

Zhang: Antidiscrimination and Tax Exemption

Alex Zhang has posted Antidiscrimination and Tax Exemption, 107 Cornell Law Review (forthcoming 2022). Here is the abstract:

The Supreme Court held, in Bob Jones University v. United States, that violations of fundamental public policy—including race discrimination in education—disqualify an entity for tax exemption. The holding of the case was broad, and its results cohered with the ideals of progressive society: the government ought not to subsidize discrimination, in particular of marginalized groups. But almost four decades later, the decision has never realized its liberal, antidiscriminatory potential. The IRS has limited implementation to the narrowest facts of the case. The scholarly literature has not formulated a systematic account of how to enforce the Bob Jones regime, in light of the expansion of antidiscrimination protections and the Court’s reasoning that is deeply rooted in common-law charity. At the same time, tax-exempt entities engage in a smattering of discriminatory activities, often with impunity.

This Article argues for extending the enforcement of Bob Jones to antidiscrimination on the basis of all protected traits. It first shows, through an examination of IRS written determinations, the inadequate scope of implementation by the agency, which has limited denials of tax exemption to racially discriminatory schools. Second, it contends that the goals of antidiscrimination and common-law charity coincide: both aim to ameliorate inequality by facilitating the entry of marginalized populations into the labor market. This affinity further justifies the Court’s holding that tax exemption requires conformity to the requirements of charity and established public policy. Third, it offers implementation strategies to minimize backlash and sketches a path toward an administrative model of antidiscrimination enforcement. As the Biden Administration continues to implement Bostock in its efforts to strengthen the federal antidiscrimination regime, Bob Jones could serve as a potent mechanism of advancing civil-rights enforcement.

Lloyd Mayer

Conservation Easements Update: IRS Has 80 Cases "Teed Up"; New McLaughlin Article

Litigation and scholarship on conservation easements continues apace. At the ABA Tax Section meeting, an official from Chief Counsel reported that the IRS has about 80 fraud cases teed up relating to syndicated conservation easement deals, and more than 425 docketed cases at the U.S. Tax Court. Coverage: Bloomberg (subscription required).

And Nancy McLaughlin (Utah) has posted a new article on conservation easements titled Enforcing Conservation Easements: The Through Line, 34 Georgetown Environmental Law Review (forthcoming 2022). Here is the abstract:

In enforcement cases, courts tend to treat conservation easements as if they were traditional servitudes. This poses a major risk to the effectiveness of conservation easements as land protection tools. If, for example, courts extinguish conservation easements via merger, or bar holders from enforcing them on laches or estoppel grounds, or interpret them in favor of free use of property, many of the conservation gains made in the United States over the last three decades could end up being ephemeral.

This article tackles this problem by providing a solid foundation for the next chapter in conservation easement enforcement. It clearly articulates the ways in which conservation easements are different from traditional servitudes. It provides a roadmap of often-overlooked bodies of law relevant to their enforcement. It also brings together the handful of enforcement cases in which the courts (in one case, the dissenting judges) recognized the special status of conservation easements. These cases address different issues but there is a clear unifying theme—a through line: conservation easements are created to benefit the public and carry out legislatively stated public purposes, and it is contrary to the public interest to blindly apply to them principles intended to facilitate development or resolve disputes between private parties.

Armed with this knowledge, courts as well as nonprofit and government holders will be far better equipped to deal with the coming wave of enforcement cases in a manner that protects the public interest.

Lloyd Mayer

DAFs Update: Anonymous Giving Study, COF Community Foundation Recommendations, OpEds

UPDATE: Fellow blogger Roger Colinvaux (Catholic) also responded to Katherine Enright's OpEd discussed below, in a Letter to the Editor titled The Status Quo Is Not Acceptable When It Comes to Donor-Advised Funds. And as previously noted in this space, he has written an article on the ACE Act, Speeding Up Benefits to Charity: Donor Advised Fund and Foundation Reform, Boston College Law Review (forthcoming).

Even as we await congressional action on the Accelerating Charitable Efforts (ACE) Act, studies, recommendations, and dueling opeds continue to emerge.

In terms of studies, Howard Husock at the American Enterprise Institute has posted a recent study on anonymous giving through DAFs that makes these points:

• A review of grant data from the five largest sponsors of donor-advised funds—including the independent public charities, serviced by financial firms Fidelity, Vanguard, and Schwab—shows that anonymous grants comprise only 4.3 percent of all grants. It also shows that grants in the anonymous category that may include support for public policy matters include a small minority (12 percent) of that small group.

• Most anonymous giving supports well-known and noncontroversial organizations, including American Red Cross, Doctors Without Borders, and Salvation Army.

• Any regulation designed to limit anonymous giving risks discouraging charity by donors that may choose anonymity for various reasons, including fear of public criticism, unwanted solicitation, or religiously motivated reasons.

Coverage: Chronicle of Philanthropy (including criticism of the study; subscription required). At the same time, Hayden Ludwig at the Capital Research Center posted a short report critical of the Silicon Valley Foundation, titled The Gilded Left’s Favorite Bay Area Bankroller. 

The Council on Foundations's Strengthening Community Philanthropy Ad Hoc Working Group also recently issued a set of recommendations for community foundations that hold donor-advised funds. The recommendations address the following issues:

• Standardizing Community Foundation Inactive Funds Policy
• Aggregate DAF Annual Distribution Requirement
• Private Foundation Distributions to Donor-Advised Funds
• Donation of Complex Gifts
• Expanding Charitable Giving

Finally, Katherine Enright of the Council of Foundations wrote an OpEd titled Donor-Advised Funds Are Essential to Democratizing Philanthropy, which led to a response from a former director development titled Donor-Advised Funds Don’t Pass the Democracy Smell Test. And at the Wall Street Journal, Jeremy D. Tedesco of the Alliance Defending Freedom wrote a commentary pushing back the Unmasking Fidelity movement titled Cancel Culture Targets Charity: Left-wing political activists want to destroy America’s long tradition of private philanthropy.

It seems the DAF debate is quickly becoming a vehicle for a number of political arguments and divides. 

Lloyd Mayer

AFPF v. Bonta Follow Up: New York Proposed Regulation; Enjoining of Connecticut Paid Solicitor Law

Last summer's Supreme Court decision in Americans for Prosperity Foundation v. Bonta, striking down California's requirement that charities submit their Form 990 Schedule Bs to the state attorney general, has led to two recent legal developments of interest to nonprofits. 

First, as reported by The NonProfit Times, New York has proposed (see pages 21-23) amending its rules relating to annual financial reports filed by charities required to register with the state to conform with the Supreme Court's decision. More specifically, the proposed rule would provide the following regarding submission of IRS forms:

(a) a copy of the complete IRS form 990, 990-EZ or 990-PF with all required schedules including a Schedule B, unless exempt from such filing pursuant to subsection (b), and

(b) public charities required to submit Schedule B to the IRS must file either (i) a redacted Schedule B with the Charities Bureau, without the names and street addresses of the donors but including the amounts of donations and the states from which those donations were received during the reporting period, or (ii) a statement of the gross amount of contributions received during the reporting period from individuals and entities residing or domiciled in New York (see section C(1)), and

(c) a copy of the complete IRS form 990-T, if applicable.

Comments were due by January 30th. On February 1st, at the ABA Tax Section Meeting, James Sheehan, the Chief of the Charities Bureau at the the New York State Department of Law, said only two comments were received by the deadline. According to Sheehan, one comment said essentially "about time," and the other comment did not apparently relate to the donor disclosure issue at the heart of the Supreme Court's decision.

Second, the U.S. District Court for the District of Connecticut preliminary enjoined several rules applicable to paid solicitors in Kissell v. Seagull, including one requiring paid solicitors to disclosure the names and addresses of donors to the state Department of Consumer Protection upon request (see paragraph 4 of the order, copied below). The court in its opinion supporting the order based the last holding in part on the AFPF decision. More specifically, the court stated:

    The Commissioner cannot meaningfully distinguish Americans for Prosperity Foundation. To the contrary, as noted above, Kissel’s First Amendment claim is stronger than the First Amendment claim in Americans for Prosperity Foundation because it rests not only on the First Amendment right to association but also on the First Amendment right to free speech that is burdened by a content-based law that applies to him as a paid solicitor and that independently triggers strict scrutiny apart from any associational rights.

The court then concluded that the donor record-keeping and inspection requirement was not narrowly tailored to serve a compelling purpose. However, in the actual follow-up order, the court limited the injunction to the inspection requirement while not enjoining the record-keeping requirement:

4. The requirement in Conn. Gen. Stat. § 21a-190f(k) that paid solicitors must disclose the names and addresses of donors to DCP upon request violates the First Amendment in its current form, and Defendant is enjoined from seeking to inspect such information under that provision. Nothing in this judgment and order shall impact or obviate a paid solicitor’s obligation to maintain records about any of the information contemplated by § 21a-190f(k), including but not limited to the names and addresses of donors, if known to the solicitor, or to disclose to DCP upon request any of the information contemplated by that provision other than donor names and addresses.

Lloyd Mayer

Americans for Prosperity, ACLU, and NRDC Raise Concerns About FARA Rulemaking

UPDATE: Politico article summarizing all of the comments submitted.

Axios reports that nonprofits from across the political spectrum are raising concerns about possible changes to the Foreign Agents Registration Act (FARA) regulations that could impact many nonprofits. The Department of Justice formally announced plans for these changes in an Advanced Notice of Public Rulemaking (ANPR) issued in December. The ANPR includes questions relating to the scope of agency for purposes of identifying agents of foreign principals (including the definition of "political consultant"), the scope of various exemptions, and various procedural issues.

The 29 comments submitted in response to the ANPR include one from a group of 14 nonprofits, among them the Alliance for Justice, the ACLU, Americans for Prosperity, the NRDC, and Oxfam America, that is highlighted in the above Axios article. Their comment emphasized that "FARA’s overbreadth and vagueness can undermine and chill First Amendment rights to speech and association and the statute has a history of being used to target undesirable expressive conduct." Other comments from nonprofits, some of which were also part of the group of 14, include ones from the American Council on Education, the Institute for Free Speech, InterAction, the International Center for Not-for-Profit Law, the International Foundation for Electoral Systems, and the National Wildlife Federation.

Lloyd Mayer

Fiscal Sponsor Successfully Fends Off Lawsuit by Nonprofit

In a rare court opinion involving a fiscal sponsorship arrangement, MobilizeGreen, Inc. v. Community Foundation (Jan. 27, 2022), the District of Columbia Court of Appeals affirmed summary judgment in favor of a fiscal sponsor facing a lawsuit from a dissatisfied nonprofit. MobilizeGreen alleged that fiscal sponsor Community Foundation breached the terms of a fiscal sponsorship agreement by failing to transfer the fiscal sponsorship to a substitute. MobilizeGreen also alleged that the Community Foundation breached a fiduciary duty the Foundation owed to MobilizeGreen with respect to the management of funds received from the U.S. Forest Service.

Agreeing with the trial court that had granted summary judgment in favor of the Community Foundation, the appellate court concluded that the Community Foundation did not breach its contractual obligations to MobilizeGreen, Inc. and did not assume any fiduciary obligations to MobilizeGreen, even assuming that it could have done so. More specifically, both courts found it was the contractual responsibility of MobilizeGreen, not the Community Foundation, to transfer the fiscal sponsorship to a third party and so its failure for a period of time to seek consent for such a transfer from the U.S. Forest Service was its responsibility. The appellate court also found that the parties' obligations to each other were fully set forth in the fiscal sponsorship agreement and no extra-contractural fiduciary duties existed.

Lloyd Mayer

 

Members of Congress Raise Concerns About Coach Compensation, Formerly For-Profit Florida Universities

Members of Congress have flagged two areas of concern relating to colleges and universities: the ever increasing salaries of FBS football head coaches; and for-profits converting to nonprofit status while still maintaining financial ties to insiders.

Rep. Bill Pascrell (D-NJ), Chairman of the House Ways and Means Subcommittee on Oversight, has expanded his probe of college coaching salaries by sending letters to Stanford University and Rutgers University about their compensation of head football coaches. These letters follow ones to Michigan State University and University of Miami last month, and to LSU and USC late last year. All of the letters ask about highly compensated university employees generally as well as about the compensation of football and basketball coaches. They also ask about the contribution of athletics to the universities' educational missions, student financial aid, and the revenues, expenses, governance, and facilities of athletic departments. Hat tip: EO Tax Journal.

Separately, the Washington Post reports that House Committee on Education and Labor is investigating payments relating to nonprofits Keiser University and Everglades University after they took over operation of previously for-profit institutions. The focus of the investigation is on millions of dollars received by Arthur Keiser, his family, and related businesses for various services, including chartered air travel and rent for properties used by the schools. See Committee Press Release (linking to a Letter from the Committee's Chairman to Education Secretary Miguel Cardona (incorrectly dated 2021)). The investigation is in the wake of a GAO report on the almost 60 conversions of for-profit colleges to nonprofit status from January 2011 to August 2020. Hat tip: Chronicle of Philanthropy.

Lloyd Mayer

 

 

Feds Target Two Alleged Multi-Million Dollar Thefts from Charities: Minnesota's Feeding Our Future; California's AME Zion Churches

I am not sure if anyone keeps a running list of the largest alleged thefts from charities, but if someone does they may have a new top-place finisher. The Star Tribune and other news outlets reported last month that federal authorities executed several search warrants on Feeding Our Future, a Minnesota anti-hunger nonprofit, and its leaders. Federal and state authorities are investigating whether the nonprofit defrauded the U.S. Department of Agriculture out of millions of dollars by spending federal funds to purchase personal real estate, cars, and other luxury items, along with personal vacations. The charity received hundreds of millions of dollars, and a more recent report says investigators now believe at least $48 million was diverted for personal expenses. Additional coverage: Sahan Journal (including details from the unsealed search warrants, although not a link to them). No charges appear to have been filed yet. Hat tip: Chronicle of Philanthropy.

Federal authorities have also been busy in California, where the L.A. Times reports that the U.S. Attorney's office for the Northern District of California (press release, but without a link to the actual indictment) has charged two former leaders of the AME Zion Church with defrauding California churches to the tune of $14 million. They allegedly did so by re-deeding local congregations' properties in the name of a legal entity they controlled and then using the properties to secure loans that benefitted themselves. Courthouse News Service reports that authorities have arrested both defendants, and one of them has pled not guilty while the other has not yet entered a plea. Additional coverage: Daily Beast. Hat tip: Ministry Watch.

Lloyd Mayer

Colgate University Announces $25 Million Gift from Alumni

Colgate University in Hamilton, New York, has announced a $25 million gift from alumni Chase Carey (’76), his wife, Wendy, and their children Steve (’12) and Tara (’13) in support of renovating the Reid Athletic Center and other initiatives.

The gift includes $1 million in support of the university’s club rugby program and $1 million for the university’s Center for Freedom and Western Civilization. The bulk of the gift -- $23 million -- will be used to renovate the university's athletic center, which was first built in 1959. Renovations will include a performance arena in a newly constructed south wing that will serve as the home for Colgate’s men’s and women’s basketball and volleyball teams with dedicated locker rooms, lounges, and film rooms. Once complete, the new 35,000 square foot arena will include additional sport office suites; locker rooms for softball, field hockey, golf, and men’s and women’s tennis; visitor locker rooms; a new football suite; and a health and performance center that integrates the university’s sports medicine, strength and conditioning, sports nutrition, and mental health and performance programs. 

In a press release issued earlier this week, Colgate stated that 

Chase Carey has made significant contributions to Colgate during the last several decades, resulting in gifts to the University of more than $35 million. Carey was an active member of the leadership group that helped construct the Class of 1965 Arena and also played an instrumental role in establishing the Trudy Fitness Center, which bears his mother’s name. He and Wendy are members of the Campaign Leadership Council.

The release quoted Mr. Carey as stating:

Athletics has always been a source of pride, energy, and school spirit that the Colgate community can share in. Our student-athletes make a commitment to pursue excellence, and as part of that process, they learn lessons about teamwork and determination that are incredibly important in life. As a world-class university with world-class student-athletes, we want to build a world-class facility that will help them reach and exceed their goals.

Congratulations to Colgate -- and to the Carey family.

Vaughn E. James, Judge Robert H. Bean Professor, Texas Tech University School of Law

 

Changes to DAF Rules Reintroduced on Capitol Hill

Late last week the NonProfit Times reported that Congressional representatives had introduced companion legislation that would set timelines on when donations to donor-advised funds (DAFs) would have to be distributed to working charities.

According to the Times, the Accelerating Charitable Efforts (ACE) Act, introduced by Rep. Chellie Pingree (D-Maine) and Rep. Tom Reed (R-N.Y.) with Rep. Ro Khanna (D-Calif.) and Rep. Katie Porter (D-Calif.), is similar to a measure introduced in the Senate last June by Senators Angus King (I-Maine) and Chuck Grassley (R-Iowa).

The legislation would update regulations for private foundations and set timelines for distributions from DAFs. The full text of the ACE Act can be accessed here.

In a prepared statement announcing the legislation, Rep. Pingree said: “For countless Mainers and people across the country, charitable organizations are life-changing and lifesaving,” yet $1 out of every $8 donated to charities goes to DAFs, giving generous tax breaks for charitable contributions but not ensuring that the funds help anyone in need. “Our half-century old philanthropy laws must be reformed to correct this fundamental flaw in our current system.”

The Initiative to Accelerate Charitable Giving (IACG), led in part by billionaire philanthropist John Arnold and Boston College law professor Ray Madoff, helped to develop the basis for the proposals. In a statement, IACG leaders noted that they were  “pleased that policymakers continue to seek a legislative solution to restore the connection between charitable tax benefits and direct contributions to charities.” They labeled the bill “a step toward getting more resources to our nation’s charities faster. . . a thoughtful and pragmatic approach that takes the policy ideas outlined in the coalition’s statement of principles and puts them into action at a time when charities across our communities need more help than ever.”

According to the Times report, 

Proponents of the federal reform estimate some $160 billion is set aside for future charitable gifts. While the funds are dedicated to charities once the contributions are made, there is no requirement to ever distribute them. Commercial DAFs, such as Fidelity Charitable and Schwab Charitable, have ballooned over the past decade, in part due to increasing contributions as well as appreciated assets to become some of the largest charities in the nation with tens of billions of dollars in assets.

As regards substance, the legislation would create two new types of DAFs:

• 15-year DAFs would allow donors to receive upfront tax benefits as they do under current law but only if funds are distributed within 15 years of the donation.
  
• 50-year DAFs would allow donors to elect an “aligned benefit rule,” continuing to receive capital gains and estate tax benefits upon donations but not the income tax deduction until all donated funds are distributed to charity. All funds would be required to be distributed to charities no later than 50 years after their donation.

Donors would be allowed to hold up to $1 million in DAF funds at any community foundation without being subject to payout rules. For amounts of more than $1 million, a donor would still receive up-front tax benefits if the DAF requires a 5% annual payout, or if donations must be distributed within 15 years of contribution.

For private foundations, salaries and travel expenses to a donor’s family members, or distributions to DAFs, could not be included in annual 5% payout obligations.

Opponents of the legislation have said that the measures to increase DAF distributions are solutions in search of a problem, noting that DAFs typically distribute at a higher annual rate than the 5% required of private foundations.

The NonProfit Times quotes Elizabeth McGuigan, director of policy at Philanthropy Roundtable, as saying in response to the House bill's introduction: “When people have the flexibility to give how, when and where they choose, it spurs even more generosity and uplifts those who we all wish to help. A bill that disincentivizes giving is tone deaf at best and at worst hurts communities around the country who rely upon their fellow Americans’ generosity.”

We shall see how the legislation fares this time.

Vaughn E. James, Judge Robert H. Bean Professor, Texas Tech University School of Law