Monday, December 14, 2020
Current Link to Updates for Nonprofit Organizations: Cases and Materials (Fishman, Schwarz, Mayer 5th Edition)
I have received a couple of messages from adopters of the above casebook asking for access to the most recent student and teacher's manual updates, so here is a current link to those updates: https://faculty.westacademic.
My co-authors and I prepared the updates last summer, but they still contain almost all recent developments. The one major exception is the September 2020 final Code section 4968 regulations (the college and university investment tax). A brief summary of those final regulations that I prepared is available here, and a number of law and accounting firms have also prepared more detailed, publicly available summaries that can be found with a Google search.
Monday, December 7, 2020
The OECD recently issued a report on Taxation and Philanthropy that will likely be of interest to our readers.
The summary provides: "This report provides a detailed review of the tax treatment of philanthropic entities and philanthropic giving in 40 OECD member and participating countries. The report first examines the various arguments for and against the provision of preferential tax treatment for philanthropy. It then reviews the tax treatment of philanthropic entities and giving in the 40 participating countries, in both a domestic and cross-border context. Drawing on this analysis, the report then highlights a range of potential tax policy options for countries to consider."
Saturday, April 18, 2020
In existing news for nonprofit academics, Stanford University Press has published the third edition of the widely respected The Nonprofit Sector: A Research Handbook, edited by Walter W. Powell and Patricia Bromley. Here is the description:
The nonprofit sector has changed in fundamental ways in recent decades. As the sector has grown in scope and size, both domestically and internationally, the boundaries between for-profit, governmental, and charitable organizations have become intertwined. Nonprofits are increasingly challenged on their roles in mitigating or exacerbating inequality. And debates flare over the role of voluntary organizations in democratic and autocratic societies alike. The Nonprofit Sector takes up these concerns and offers a cutting-edge empirical and theoretical assessment of the state of the field.
This book, now in its third edition, brings together leading researchers—economists, historians, philosophers, political scientists, and sociologists along with scholars from communication, education, law, management, and policy schools—to investigate the impact of associational life. Chapters consider the history of the nonprofit sector and of philanthropy; the politics of the public sphere; governance, mission, and engagement; access and inclusion; and global perspectives on nonprofit organizations. Across this comprehensive range of topics, The Nonprofit Sector makes an essential contribution to the study of civil society.
Wednesday, September 4, 2019
In an article entitled "He Ran an Empire of Soap, and Mayonnaise. Now He Wants to Reinvent Capitalism", today's New York Times profiles Paul Polman, the current CEO of Unilever. Under Mr. Polman's tenure, Unilever has stopped issuing quarterly guidance, which is an interesting turn for those of you who follow corporate finance and securities law. The interesting part for this blog, however, is that Polman stopped focusing on short term results and started looking at long term changes, including "a very bold objective to decouple [Unilever's] growth from our environmental impact." In the article, he says "we need to decarbonize this global economy if we want to keep it livable. We need to find an economic system that is more inclusive." To that end, part of the reason Unilever turned down a bid from Kraft Heinz was the significant difference between the two companies on these types of issues of corporate social responsibility and double bottom line thinking.
A few issues came to mind for me as I read this. First, with regard to benefit corporation status, I said to myself, "Interesting that Unilever was able to go there without being a benefit corporation and under, presumably, standard fiduciary duty rules of engagement." The answer to that is that Unilever is apparently two different organizations: Unilever NV is organized in the Netherlands and Unilever PLC is organized under the laws of England and Wales, according to their website , so they may in fact be working under different rules - I'd be curious if anyone knows what fiduciary duty standards apply in these jurisdictions.
Of course, not all benefit corporations are B Corps, and vice versa, so just for fun, I then hit the Google with "Unilever B Corp." My first hit was "Unilever, Multinationals, and the B Corp Movement," featuring a video from none other than .. Paul Polman. Apparently, Unilever will be working with B Lab to look at barriers to B Corp status for mulinationals as part of a new Multinationals and Public Markets Advisory Council. Unilever owns a number of B Corp certified subsidiaries, including Ben & Jerry's and Sir Kensington's, an "upstart condiments maker" according to one industry blog (I'm not really sure what an upstart condiment is ... anyone had Sir Kensington's? Looks pretty good though....)
The other connection I made harkens back to my post from yesterday, and specifically the book Winner Take All that I mentioned yesterday. One of the themes of Winner Take All was that business elites like to talk about CSR, impact investing, double bottom lines, and all of the jargon that accompanies philanthro-capitalism because it is safe and familiar. Everyone around them comes from a similar business background, so a lack of diversity of thought and training is reinforced. This leads to the singular thinking that business methods can solve social problems, and there are no countervailing voices to say, "Hey, wait a minute..." In the best case scenario, this is myopia. In the worst case scenario, business solutions to social issues are "win-win" - at least to the business - and forestall efforts to reallocate resources away from the business sector to governments in order to address these issues. My problem with Winner Take All is that it was extraordinarily dismissive of those who were involved in philantho-capitalism as being entitled, self-indulgent, or greedy. I think the picture is far more nuanced then that, and it was interesting to read the profile of Mr. Polman through that lens.
Tuesday, September 3, 2019
I found this helpful list of recommended nonprofit readings on the Chronicle of Philanthropy website:
I have read a few of them, have a couple of others on my Nook awaiting my attention (with summer reading time coming to an end and the new semester ... they may be waiting a while), and others that I'm about to add to the stack. I read Winner Take All - I think the central point was important, but found the author's approach to be so judgmental as to overwhelm his argument. I just started Just Giving, and am looking forward to finishing that as part of an article I'm writing (slowly...) on endowments. I think the next up will be Uncharitable.
I'd love to hear any thoughts others might have on these books, and if there are any that you all might add to the list.
Wednesday, May 29, 2019
With summer here and the day-to-day craziness mostly (!) under control, I have the luxury of a few moments of just … thinking. It’s easy to get wrapped up in the text of the Code, the most recent case law, or the scandal du jour (I’m looking at you, NRA). But I rarely have the time to step back and take a wider scope on things.
At this particular moment, it is courtesy of Twitter, which seems somewhat antithetical to big thoughts (literally, given the word count), but one never knows from whence inspiration may come. In the matter of just a few days, a number of Twitter posts came across my feed that connect indirectly in my mind to a larger questions of the role of charity in a democracy.
Twitter post number 1. Nonprofit Quarterly posted an article on its website entitled “The Road Less Traveled: Establishing the Link between Nonprofit Governance and Democracy.”
This article discusses how best practices in nonprofit board governance increase the representation of the various communities served by a nonprofit. The failure to follow these best practices results in a “’democratic deficit’ in board governance- that is, an absence of democratic structures and processes.” Addressing the democratic deficit doesn’t just benefit the charity – it benefits our democracy writ large: “Wider constituent participation in nonprofit governance will not only help citizens develop civic skills and democratic values … .”
Twitter post number 2. The second Twitter post links to a Nonprofit Quarterly podcast that discusses “No White Saviors,” a movement that discusses the impact of race on hierarchy and power in the international charitable economic development space.
This links a Nonprofit Quarterly podcast that discusses “No White Saviors,” a movement that discusses the impact of race on hierarchy and power in the international charitable economic development space. “Those with power hav[e] the resources and capability to make decisions on what should the outcome should be for vulnerable populations.” Podcast at 6:42.
Twitter post number 3. The third post is an interview with Phil Buchanan of The Center for Effective Philanthropy, posted on vox.com, where he responds to criticism of that wealthy philanthropy is undemocratic (set for the more fully in his book, Giving Done Right).
In the interview, Buchanan is quoted as saying:
The structural critiques are important and they play out in our democratic politics. But in the meantime, here we are. We have significant wealth that’s been accumulated in this country. We have endowed private foundations that don’t even have a connection on the board to the original donor. These are institutions that are focused on a mission. They’re focused on the public good. I like working in the day to day, in the practical reality, where there are people with decision-making power to allocate these resources. I want to help them to do it effectively.
I think all of these pieces raise interesting views on the role of power and money and the role of the charitable sector in a democracy. At the end of the Buchanan interview, he specifically asks if we should be subsidizing all of this through the tax code, and specifically the Section 170 charitable deduction (spoiler alert: he says yes, and expand it to non-itemizers).
I’m more interested, however, in the Section 501(c)(3) implications on all of this. Since Section 501(c)(3) is the section that creates the boundaries between that which is charitable (at least, charitable in tax terms) and that which is not, does it make sense for those rules to play a role in policing this issue. One could view the 1969 passage of the private foundation excise taxes as the historical pre-cursor for this discussion, as at least part of the background of that legislation was to minimize the benefit to and the influence of the most wealthy through charitable vehicles. My thoughts aren’t fully formed on this, but I found it an interesting crossing of the Twitter streams in a very short 48 hour period. Any musings and other big thoughts are, of course, most welcome.
Friday, February 15, 2019
Ellen Aprill's Review of Hamburger's "Liberal Suppression: Section 501(c)(3) and the Taxation of Speech"
Ellen Aprill (Loyola-LA) recently posted a review of Professor Philip Hamburger's (Columbia) "Liberal Suppression: Section 501(c)(3) and the Taxation of Speech" at HistPhil.org. HistPhil, which is "a web publication on the history of the philanthropic and nonprofit sectors, with a particular emphasis on how history can shed light on contemporary philanthropic issues and practice." Prof. Hamburger's book argues that, as a constitutional law matter,
... theopolitical fears about the political speech of churches and related organizations underlay the adoption, in 1934 and 1954, of section 501(c)(3)’s speech limits. He thereby shows that the speech restrictions have been part of a broad majority assault on minority rights and that they are grossly unconstitutional.
Friday, February 8, 2019
This Research Handbook provides a comprehensive overview of scholarship on not-for-profit law. The chapters, written by world leading experts, explore key ideas and debates in relation to: theories of the not-for-profit sector, the composition and scope of that sector, not-for-profit organisations and the constitution, the legal conception of charity, the tax treatment of not-for-profit organisations and the regulation of not-for-profits. The book serves to represent not-for-profit law as a field of academic inquiry, and to point the way to future research in that field.
And here is the table of contents:
Part I Theories of the Not-for-Profit Sector
1. A Law and Economics Perspective on Nonprofit Organizations
Richard Steinberg and Brian Galle
2. A Primer on the Neo-Classical Republican Theory of the Non-Profit Sector (And the Other Three Sectors Too)
3. A Charity Law Perspective on a Liberal Perspective on Charity Law
4. The Not-for-Profit Sector: A Roman Catholic View
Fr Brian Lucas
Part II The Composition and Scope of the Not-for-Profit Sector
5. An Overview of the Not-for-Profit Sector
Myles McGregor-Lowndes OAM
6. The Boundary between Not-for-Profits and Government
7. The Boundary between the Not-for-Profit and Business Sectors: Social Enterprise and Hybrid Models
Benjamin M Leff
8. Donor Intention and Dialectic Legal Policy Frames
Part III Not-for-Profit Organisations and the Constitution
9. Not-for-Profit Organisations, Public Law and Private Law
10. Not-for-Profit Organisations and Equality Law
François du Toit
11. Charity Law and Freedom of Political Communication: the Australian Experience
12. Not-for-Profit Law and Freedom of Religion
Part IV The Legal Conception of Charity
13. The History and Future of the Law of Charity
G E Dal Pont
14. Charity in Common Law and Civilian Jurisdictions
Michael H Lubetsky
15. The Heads of Charity in Comparative Perspective
16. Public Benefit Post-Pemsel
Part V The Tax Treatment of Not-for-Profit Organisations
17. Taxation and the Not-for-Profit Sector Globally: Common Issues, Different Solutions
18. Subsidizing Charity Liberally
Miranda Perry Fleischer
19. Ways the Charitable Deduction Has Shaped the US Charitable Sector
20. The Major Tax Concessions Granted to Charities in Australia, New Zealand, England, the United States of America and Hong Kong: What Lessons Can We Learn?’
21. Reforming Tax Policy with Respect to Non-Profit Organisations
Part VI The Regulation of Not-for-Profit Organisations
22. Principles of Regulation of Not-for-Profits
23. Design and Implementation of a Charitable Regulation Regime
24. Redefining the Measure of Success: A Historical and Comparative Look at Charity Regulation
Oonagh B Breen
25. A Regulator’s View
Susan Pascoe AM
Monday, May 7, 2018
Samuel D. Brunson (Loyola University Chicago) has published God and the IRS: Accomodating Religious Practice in United States Tax Law. Here is a brief description:
Seventy-five percent of Americans claim religious affiliation, which can impact their taxpaying responsibilities. In this illuminating book, Samuel D. Brunson describes the many problems and breakdowns that can occur when tax meets religion in the United States, and shows how the US government has too often responded to these issues in an unprincipled, ad hoc manner. God and the IRS offers a better framework to understand tax and religion. It should be read by scholars of religion and the law, policymakers, and individuals interested in understanding the implications of taxation on their religious practices.
Tuesday, January 2, 2018
James Fishman, Stephen Schwarz, and I have written supplemental update memos for our Nonprofit Organizations casebook reflecting the recently passed federal tax legislation. One update is for students and the other is for teachers. Foundation Press should make them available shortly, but for those of you who need them urgently please email any of us and we can send them directly to you.
Sunday, November 19, 2017
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
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.
Friday, June 23, 2017
Earlier this week I posted a link to the recently published Financing the Benefit Corporation article by Dana Brakman Reiser and Steven Dean, but there have been a number of other recent articles and book chapters relating to social enterprise that are worth mentioning, including several draft book chapters forthcoming in The Cambridge Handbook of Social Enterprise Law:
Seattle University Law Review: Benefit Corporations and the Firm Commitment Universe (sixteen articles, including the Reiser & Dean article )
Brian D. Galle (Georgetown), Self-Regulation of Social Enterprise, forthcoming in The Cambridge Handbook of Social Enterprise Law
Andrew S. Gold (DePaul) & Paul B. Miller (McGill), Fiduciary Duties in Social Enterprise, forthcoming in The Cambridge Handbook of Social Enterprise Law
Lloyd Hitoshi Mayer (Notre Dame), Creating a Tax Space for Social Enterprise, forthcoming in The Cambridge Handbook of Social Enterprise Law
Brett McDonnell (Minnesota), Three Legislative Paths to Social Enterprise: L3Cs, Benefit Corporations, and Second Generation Cooperatives, forthcoming in The Cambridge Handbook of Social Enterprise Law
Peter Molk (Willamette), Do We Need Specialized Business Forms for Social Enterprise?, forthcoming in The Cambridge Handbook of Social Enterprise Law
Emily Winston (NYU), Benefit Corporations and the Separation of Benefit and Control, forthcoming in Cardoza Law Review
Friday, January 23, 2015
In recent years, a conservative majority of the U.S. Supreme Court, over vigorous dissents, has developed circumventions to the Establishment Clause of the First Amendment that allow state legislatures unabashedly to use public tax dollars increasingly to aid private elementary and secondary education. This expansive and innovative legislation provides considerable governmental funds to support parochial schools and other religiously-affiliated education providers. That political response to the perceived declining quality of traditional public schools and the vigorous school choice movement for alternative educational opportunities provokes passionate constitutional controversy. Yet, the Court’s recent decision in Arizona Christian School Tuition Organization v. Winn inappropriately denies taxpayers recourse to challenge these proliferating tax funding schemes in federal courts. Professors Winer and Crimm clearly elucidate the complex and controversial policy, legal, and constitutional issues involved in using tax expenditures - mechanisms such as exclusions, deductions, and credits that economically function as government subsidies - to finance private, religious schooling. The authors argue that legislatures must take great care in structuring such programs and set forth various proposals to ameliorate the highly troubling dissention and divisiveness generated by state aid for religious education.
Tuesday, January 28, 2014
The California Historical Society is accepting nominations for the 2014 California Historical Society Book Award.
According to today's Philanthropy News Digest, the Society will award a cash prize of $5,000
to a book-length manuscript that makes an important contribution to California historical scholarship and adheres to high scholarly standards while being lively and engaging to general readers. In addition to conventional works of historical scholarship, other works eligible for consideration include biographies, collections of letters or essays, photographic or artistic studies, creative nonfiction, and other ways of informing the mind and engaging the imagination in an understanding of California’s past.
The winning manuscript will be published in both print and e-book format, and the society will pay for an awards ceremony, promotion, and an author’s tour.
Eligibility and application guidelines are available at the California Historical Society Website.
Monday, August 26, 2013
For those of you who use Betsy Schmidt's Nonprofit Law: The Life Cycle of a Charitable Organization in your class teaching materials, updates are available at http://www.aspenlawschool.com/books/non_profit/default.asp under "Professor Materials."
Thursday, August 8, 2013
For those who use Jim Fishman and Steve Schwarz's casebook, Nonprofit Organizations, Cases and Materials (4th ed. 2010), the 2013 Student Update is available here and 2013 Teacher's Manual Update is available here. (Full disclosure: I collaborated on these updates.)
Thursday, March 14, 2013
Thursday, October 13, 2011
The University of Kentucky College of Law hosted yesterday a conference on the recent book Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts authored by Nina J. Crimm (St. John's) and Laurence H. Winer (Arizona State). Commentators were Dean David A. Brennen, Joshua A. Douglas (Kentucky), Rev. Nancy Jo Kemper (Transylvania University) and Paul E. Salamanca (Kentucky). The book is a comprehensive consideration of the constitutional and federal tax issues raised by religious leaders preaching politics from the pulpit and includes thought-provoking proposals for lessening the constitutional tensions in this area.
Tuesday, August 30, 2011
We have previously blogged about the trend in the United States toward the creation of nonprofit news organizations (see, for example, a Pew Research Center's Project on Excellence in Journalism post, a federal legislation post, and a Texas Tribune post). Now from across the Pond comes word that a group of journalists, academics, and charitable funders is asking the Charity Commission for England and Wales to make it easier for nonprofits there to qualify as charities. The requests were apparently based upon a recent report prepared by the Reuters Institute for the Study of Journalism at Oxford University titled Is There a Better Structure for News Providers? The Potential in Charitable and Trust Ownership, which is summarized briefly on Oxford's website but is not yet available in full form. The author is Robert G. Picard. Here is the summary:
Charitable and trust ownership are frequently advocated as alternatives to challenges in commercial news organisations. This book adds information, evidence and knowledge to the dialogue taking place by exploring existing arrangements in UK, France, Canada, and US, looking at various structural arrangements and exploring advantages and disadvantages of various forms.