Friday, February 9, 2024
The U.S. Attorney's Office for the District of Minnesota announced last month that the executive director of House of Refuge Twin Cities pleaded guilty to one count of wire fraud in the $250 million fraud scheme centering on the nonprofit Feeding Our Future. The charge related to her redirection of millions of dollars in federal funds to pay personal expenses and family members. According to the press release, she is the seventeenth defendant to plead guilty to charges arising from this fraud scheme. Coverage: CBS News; Sahan Journal; Star Tribune.
And she is unlikely to be the last, as this week the same U.S. Attorney office announced federal criminal charges against 10 additional defendants arising from the same fraud (on top of approximately 60 already charged). Those defendants included six members from the same family who allegedly used a variety of legal entities to receive and launder the stolen federal funds, as well as four others who allegedly falsely claimed to have provided meals to children. Coverage: MPR News.
Not all the action is on the government's side, however. According to an MPR News article, the founder of Feeding Our Future and alleged leader of the fraud conspiracy is pushing back. She is asserting that Minnesota Department of Education officials who oversaw the hunger relief funds intentionally mislabeled document and used burner phones to improperly thwart a 2020 lawsuit brought by the nonprofit challenging the Department's treatment of Feeding Our Future. Her attorney stated that she plans to raise these allegations as part of her defense against federal wire fraud and bribery charges.
The Associated Press reports a National Labor Relations Board (NLRB) Regional Director has ruled that Dartmouth basketball players are employees, which would allow them to create a labor union. The decision is particularly significant because the players, in common with other Ivy League athletes, do not receive athletic scholarships As the story notes, this holding is consistent with the NLRB General Counsel's 2021 memo concluding that certain college athletes should be considered employees. The decision is subject to review by the NLRB. Additional coverage: Inside Higher Ed; N.Y. Times; Slate; Washington Post.
Separately, in the rapidly developing name, image, and likeness (NIL) area the Division I Council of the NCAA approved new rules relating to disclosure and transparency. The press release highlights "four elements of student-athlete protections": voluntary registration for NIL service providers; required disclosure by student-athletes to their schools of more than nominal NIL agreements; development of a template contract and recommended contract terms; and development of an education plan for student-athletes and other stakeholders. The Council also introduced new proposals for consideration relating to school involvement and recruiting in NIL activities, including ones that would remove certain restrictions on school support for such activities.
At the same time, disputes between the NCAA and schools relating to NIL arrangements are heating up. Last month the NCAA announced an agreement relating to a violation of NCAA rules by a Florida State assistant football coach, including various recruiting-related restrictions. Coverage: ESPN; Washington Post. And earlier this month USA Today reported a federal judge refused to issue a temporary restraining order relating to the NCAA's NIL rules in an antitrust lawsuit brought by Tennessee and Virginia. A preliminary injunction hearing in that case is set for next week. Additional coverage: Law360 (subscription required).
Tuesday, February 6, 2024
The Tax Exempt and Government Entities division recently released its Fiscal Year 2023 Accomplishments Letter. Topics of particular relevance to tax-exempt organizations include:
- Several new tools to increase exam efficiency (and can we hope volume?), including an Exempt Organizations Graph Exploration Tool ("an interactive graph tool designed to help EO examiners and classifiers conduct risk analysis and identify potential insider abuse among tax exempt organizations") and a soon-to-be-published TE/GE Consolidated Examination Internal Revenue Manual.
- The launch of the Tax Exempt Organization Search Modernization project, which will include "a dataset guide, data dictionary, indices, annotated tax forms, schemas, FAQs and regular updates."
While the Letter also highlighted the hiring of 197 employees, it later reveals that because of attrition and other adjustments TE/GE only had a net increase of seven permanent staff for the fiscal year.
As of the end of the year, there were 541 employees assigned to the Exempt Organizations function. Those employees started 2,529 examinations and closed 2,464 examinations. One of the results of the examinations were proposed revocations of 141 tax-exempt entities. This compares with the closure of 119,491 determination applications, including 103,073 approvals (98,417 under 501(c)(3)).
Wednesday, January 17, 2024
Sometimes I like to share my own perspective on issues previously covered well by my colleague bloggers. In this case, I’m following up two posts (this one and this one) by my colleague Darryll Jones on IRS guidance issued last May about the possibility of tax-exempt status for so-called NIL collectives. I also like to take the opportunity to recommend podcasts when they are informative, and in this case there are excellent episodes of The Daily and Taxes for the Masses (discussion of tax-exemption begins at minute 12:50).
NIL is the acronym for “name, image, and likeness.” In 2021, NCAA issued rules that permit student athletes to contract with investors to exploit the value of their NIL rights. Groups of investors, often fans of specific schools’ teams, joined together to form NIL collectives to contract with student athletes at particular schools. Most of these collectives are operated on a for-profit basis, but some are organized as nonprofits, in which supporters made tax-deductible contributions, and the nonprofit NIL collective makes NIL payments to student athletes from the contributions.
Last May, the IRS issued a Chief Counsel Memorandum that described NIL collectives that paid 80 to 100 percent of all contributions to students in the form of NIL payments. The Memorandum argues that NIL payments to student athletes creates a private benefit to student athletes that is not a “byproduct of the exempt activities,” and that this private benefit to student athletes will “in most cases, be more than incidental both qualitatively and quantitatively.” In other words, paying student athletes for their NIL rights is not itself a charitable purpose, and therefore the organization cannot qualify for tax-exempt status if the private benefit it provides to students through the NIL payments is too substantial.
In my view, the weakest part of the Memorandum is that it doesn’t really explain why NIL payments to student athletes do not potentially serve the charitable purpose of advancing education or amateur sports competitions, even though athletic scholarships presumably would. Instead of distinguishing between merit-based athletic scholarships (that presumably do not create an impermissible private benefit) and NIL payments (that do), it discusses need-based scholarships, which would clearly be permissible because mitigating poverty is a well-established charitable purpose. The comparison between need-based scholarships and NIL payments is kind of a red herring, since it’s so obvious how those two kinds of payments are different from each other. But I know of no authority to support the idea that scholarships based on athletic ability rather than need fail to advance a charitable purpose because they are not need-based. Obviously, NIL payments and athletic scholarships are different from each other, and so this weakness of the Memorandum does not mean that it is wrong. It just fails to explain what is materially different between NIL payments and athletic scholarships when evaluating private benefit to student athletes.
But the fact that NIL payments do not themselves constitute a charitable purpose does not mean that NIL Collectives that pay them necessarily fail to qualify for tax-exempt status. Once a noncharitable purpose (NIL payments) is identified, the collective must determine if its noncharitable activities constitute a private benefit to the student athletes that is too substantial, either quantitatively or qualitatively. Professor Jones’s January 10 post cites a Chronicle of Philanthropy article that describes a new charitable NIL collective (“Hail! Impact”) that purports to qualify for tax-exempt status even though it makes NIL payments to student athletes. The organization’s theory is that so long as 70% of its funds are used for a proper charitable purpose, the 30% of its funds that are used for NIL fees do not create a substantial private benefit, either quantitatively or qualitatively. The article also states that the organization, “worked with the IRS and believes it is the first NIL collective to be designated a charity since the agency issued its guidance about donations.” In other words, the IRS appears to have blessed this 70/30 split as the proper way to structure an NIL collective. Given that donating money in general support of athletic programs at a tax-exempt college or university has always been treated as a tax-exempt purpose, NIL Collectives could be formed to transfer 70% of all contributions to the university in support of its athletic programs (and presumably could be spent on merit-based athletic scholarships) and the remaining 30% could be spent on NIL payments to student athletes. It remains to be seen how many NIL collectives will choose this path and how many will simply organize as profit-making ventures for their investors, taking as much profit as they can from exploiting the NIL rights of student athletes.
The podcasts I recommended take the position that charitable NIL collectives are an abuse of the Tax Code. But the fact is that under current law, there is nothing impermissible about an NIL Collective making NIL payments to athletes, as long as that activity is insubstantial in relation to its charitable activities. That’s why charities can engage in lobbying activities, for example, or enter into a joint venture with for-profit partners, or pay relatively high (but reasonable!) fees to fundraising firms, or engage in any number of other activities. As many of the Nonprofit Law Professor Blog posts point out, there are areas in which the law of private benefit probably fails to sufficiently protect the nonprofit sector. I definitely agree that a more coherent framework would be preferable to the one we have. But I’m not sure I am persuaded that I should be outraged by tax-exempt NIL collectives. If donors want to give to universities’ athletic programs and “on the side” provide NIL payments to student athletes, I’m OK with that. I think these NIL payments are less likely to undermine the educational objectives of the schools than those made by ordinary for-profit investors, and I even (perhaps naively) think they might be less exploitative of the athletes. If fans want to donate to make payments to student athletes, don’t we imagine, at least as a starting point, that they are might care more about those student athletes than investors who are simply trying to make a buck off a teenagers’ NIL value? Or do I need to go back and re-read my Milton Freidman?
Tuesday, January 16, 2024
The whole dark money issue creates cognitive dissonance in all of us, I think. "Hooray NAACP v. Alabama ex rel. Patterson, way to go Supremes!" But then "Boo Americans for Prosperity Foundation v. Bonta, you suck, Supremes!" The Daily Beast reports on the latest example. The headline screams Republicans Are Making ‘Dark Money’ Even Darker for 2024. Yep, those evil Republicans are at it again. But, well, the story is about Protect Our Winters, a "left-leaning" nonprofit thumbing its nose at the FEC on the strength of the position asserted by the Republican Commissioners in the minority on the FEC. I love a story that allows me to take both sides, don't you?
For years, dark money groups have enjoyed certain advantages that offer donors anonymity—putting the proverbial “dark” in “dark money.” But late last month, one small outside group quietly told election law regulators to shove off when watchdogs demanded to see the group’s donors, a move that legal experts say could signal a profound shift in campaign finance disclosure laws, making dark money even darker just in time for the 2024 election.
The group, a left-leaning climate change advocacy organization called “Protect Our Winters Action Fund,” was standing its ground after a notice from the Federal Election Commission flagged the group’s failure to disclose contributors, as the law requires. In response, POWAF—a 501(c)(4) nonprofit—simply declined to disclose its donors. And as a justification, the group cited a policy statement from the FEC’s three Republican commissioners released in June 2022, signaling they would not enforce “dark money” disclosure rules as courts had previously decided.
That policy statement does not carry the force of law. And legal experts told The Daily Beast that the commissioners’ memo—written in response to two federal court rulings that had interpreted the law the opposite way—undercuts judicial decisions favoring transparency. Instead, these experts said, GOP commissioners are apparently signaling they will unilaterally refuse to enforce the law as courts have defined it. With all FEC enforcement decisions requiring support from four of the six commissioners, this three-commissioner Republican contingent could block any action.
While the mechanisms involved may seem highly technical and obscure, the potential consequences are broad and easy to understand. In short, transparency advocates say, if outside groups like POWAF take advantage of the GOP commissioners’ posture, those groups could continue to keep their donors secret—even though the courts have ruled otherwise—without risking penalties. The upshot, experts worry, could be a murky operational environment for some of the most powerful and well-funded outside spending groups in the country, during an election cycle that is, once again, shaping up to be the most critical in recent history.
Brendan Fischer, a campaign finance lawyer and deputy executive director of the watchdog group Documented, said that half of the commissioners are undercutting the rulings of two federal courts, allowing dark money groups to “continue hiding their donors.” “A D.C. District Court and the D.C. Circuit have both held that nonprofits which spend money on independent expenditures must disclose their political contributors,” Fischer told The Daily Beast. “But just half of the FEC’s commissioners are aiming to protect dark money and render those decisions meaningless.”
What’s more, the crux of the GOP’s interpretation—that the federal courts hadn’t stipulated a replacement for the regulation they vacated, and that the agency they run has still failed to, in their view, provide “definitive guidance” for reporting and enforcement—raises the question of whether dark money groups are required to disclose any donations at all.
darryll k. jones
Tuesday, December 19, 2023
In response to a general request from the Internal Revenue Service for comments on its forms for tax-exempt organizations, the National Association of State Charity Officials (NASCO) sent a letter repeating its longstanding concerns regarding Form 1023-EZ. Here is NASCO's summary of that letter:
In the letter, we underscore NASCO’s longstanding position that the 1023-EZ should be revisited and reiterate the need for timely availability of Forms 990. We highlight how the use of the Form 1023-EZ combined with the IRS’s retroactive reinstatement procedures under section 4 of Rev. Proc. 2014-11 can harm the public interest and enable scam charities to fly under the radar with serious consequences for donors, public funds, and confidence in the charitable sector.
The Sacramento Bee reports that a federal grand jury indictment unsealed last week charges the former chief executive officer of Goodwill Industries of Sacramento Valley & Northern Nevada for wire fraud and identity theft charges arising from his alleged diversion of $1.4 million in funds from the charity for his own benefit. More specifically, the indictment contains "nine counts of wire fraud, aggravated identity theft and three counts of monetary transactions with proceeds of specified unlawful activity." The article reports that the charity, which is not named in the indictment, fired the CEO in July 2021 after a routine audit discovered a series of questionable transactions, which triggered an internal investigation by the Board of Directors. The DOJ also issued a press release, with a link to the indictment.
While we do not have all the details, it is refreshing to see that a charity's internal controls caught up to the alleged wrongdoing despite the CEO's reported extensive attempts to hide them. And it is reassuring to see a charity's board act promptly and thoroughly to address the discovered irregularities.
First, it posted on the SOI Tax Stats - Charities & Other Tax-Exempt Organizations Statistics webpage the tables summarizing data from 2020 Forms 990. Highlights include:
- Section 501(c)(3) organizations reported total assets of $5.5 trillion, including $2.6 trillion in investments, and net assets of $3.5 trillion. This compares with $920 billion in total assets for section 501(c)(4) to (9) organizations, including $590 billion in investments, and net assets of $563 billion in net assets.
- Section 501(c)(3) organizations reported total revenue of $2.7 trillion, including $696 billion in contributions, gifts, and grants. Total revenue for section 501(c)(4) to (9) organizations was $390 billion, of which only $30 billion was contributions, gifts, and grants.
- Section 501(c)(3) organizations reported total expenses of $2.4 trillion, including $2.1 trillion for program services. Total expenses for section 501(c)(4) to (9) organizations was $362 billion. Section 501(c)(4)s reported $105 billion in program service expenses, as compared to total expenses of $115 billion; program services expenses are not required to be separately reported for section 501(c)(5) to (9) organizations.
Second, the IRS updated the procedures for obtaining copies from the Service of not only annual returns (Form 990 series) but also determination letters and exemption applications. I tried out the Form 4506-B process to request exemption applications for several organizations for a research project. The form was easy to complete, and clicking on a button at the bottom of the form automatically created an email from my gmail account to the IRS, submitting the form. Now I am waiting to see if and when I actually receive a copy of the application from the IRS.
Wednesday, December 6, 2023
I’ve been stewing over the power struggle at OpenAI for a couple of weeks, not sure what to think about it. It is either the biggest nonprofit law story of the decade, or not. And, unfortunately, we may never know which it is.
For those not in the know, OpenAI is the company that release ChatGPT about a year ago, revolutionizing the public perception of how far advanced AI technology is, and deeply freaking out professors who give open-internet exams. I didn’t know before a couple of weeks ago that OpenAI is a nonprofit/for-profit joint venture, and therefore a subject of academic interest to me, even if it doesn’t end up creating the robot overlords I will one day serve. OpenAI, Inc. was created as a 501(c)(3) organization in 2015 “to advance digital intelligence in the way that is most likely to benefit humanity as a whole, unconstrained by the need to generate financial return.” (That’s quoted from OpenAI Inc.’s first Form 990). OpenAI, Inc. raised over $130 million in tax-deductible contributions for that mission. However, according to OpenAI’s website, “[i]t became increasingly clear that donations alone would not scale with the cost of computational power and talent required to push core research forward, jeopardizing our mission.” So, in 2019, OpenAI Inc. formed a joint venture with for-profit providers of equity capital (almost exclusively Microsoft), which is naturally called “OpenAI.” (They then began referring to the original OpenAI Inc. as “Nonprofit OpenAI,” not to be confused with a wholly owned subsidiary of Nonprofit OpenAI that serves as the “manager” of OpenAI called OpenAI GP LLC). A couple of weeks ago, OpenAI’s board fired its founder Sam Altman for undisclosed reasons. Altman was immediately hired by Microsoft, many employees and key figures in OpenAI threatened to leave (possibly to go to Microsoft) unless the board re-hired Altman, which it immediately did as part of an agreement under which most of the board would be replaced by new board members.
If this is the nonprofit law story of the decade, it’s because of the federal law of nonprofit joint ventures. First it is important to distinguish between inurement (the possibility of nonprofit insiders benefiting themselves) and private benefit (the basis of the IRS’s rules about nonprofit joint ventures). My fellow blogger posted some thoughts on the risk of inurement in the OpenAI story, an issue I have worried about in general as well. But the OpenAI story is probably not primarily an inurement story; it is more likely a story about “private benefit.” The law on private benefit deals not primarily with the risk of insiders providing themselves with financial benefits, but rather with the risk that a charity could be diverted from its core charitable mission for other reasons, including benefiting outsiders. The worry is that, even without insiders financially benefiting themselves, the charity might abandon its mission. The law of joint ventures is derived from this doctrine, and at the risk of wild simplification, that doctrine can be summed up in a single word – control. In a string of revenue rulings and court cases in the late 1990s and early 2000s, the defining characteristic of a joint venture was determined to be whether the nonprofit controlled the joint venture. If a nonprofit and a for-profit formed a joint venture to carry out the nonprofit’s charitable mission and also provide profits to other members of the venture, it is permissible so long as the nonprofit effectively controls the venture and impermissible if the for-profit partners effectively control it. There was frustratingly indeterminate litigation about what exactly constitutes effective control on the margin, but it is clear that the nonprofit has sufficient control (as a legal matter) if a majority of the board of the venture is constituted by directors who are “independent,” meaning they have no financial interest in the venture. The control question is even more clear when the day-to-day management of the venture is controlled by a company controlled by the nonprofit rather than a company controlled by the for-profit partners. The embedded assumption is that so long as the venture is controlled by disinterested board members with a fiduciary duty to the charitable mission of the nonprofit, they serve as an adequate check on the nonprofit being diverted from its charitable mission to maximize the financial gains of the partners.
The OpenAI website states proudly that, “[w]hile our partnership with Microsoft includes a multibillion dollar investment, OpenAI remains an entirely independent company governed by the OpenAI Nonprofit. Microsoft has no board seat and no control.” At least formally, OpenAI’s independent board members did not have a financial interest in OpenAI and so were unconflicted in their duty to pursue OpenAI’s charitable mission. If this is the nonprofit story of the decade, it would go like this: OpenAI was created as a nonprofit joint venture, with 130 million dollars of charitable contributions. But, when there was a conflict between the guardians of its charitable mission and Microsoft, Microsoft won. Microsoft's champion, Sam Altman, returned to continue leading the venture, and the nonprofit board members stepped down, leaving the field open to the real goal of maximizing profit. In other words, the joint venture doctrine’s reliance on formal control just doesn’t work. If we care about protecting the integrity of the nonprofit sector, we need to find another legal doctrine to do so.
The key question about the OpenAI kerfuffle then is whether that story is true. I know extremely little about what actually is happening, and the best analysis I’ve found is a podcast by Ezra Klein. The actual best coverage I’ve found is this, but because I have been a fan of Klein and his work for a long time, I care about the fact that Klein says he is not convinced by the depressing nonprofit story I just. For example, he very briefly discusses this issue (at minute 38:18) and takes seriously the idea that Altman’s return is not a concession by the nonprofit board, but instead a victory for the nonprofit in which, after the conflict, “maybe they have a stronger board that is better able to stand up to Altman.” (at 39:20). So, who knows. I assume someone is writing a book about this that will appear in a few minutes and then several minutes after that, we’ll get to watch a pretty exciting movie about it, hopefully starring Jonah Hill (who, by the way, I also think should play Sam Bankman Fried).
In addition to the question of what The Law should do about nonprofit joint ventures in the future, there is an equally intriguing question to me about what for-profit investors will do. We know that Microsoft is the primary for-profit investor in the OpenAI joint venture, and we could be tempted to think about why Microsoft agreed to make a “multibillion dollar investment” in a venture that is expressly devoted to charitable purposes rather than maximizing Microsoft’s profits. I’m guessing Microsoft rarely makes naïve or stupid multibillion dollar investments. Maybe they thought that when push came to shove, their investment gave them sufficient functional control that it would all work out, and maybe their takeaway from the kerfuffle is that they were right. If other investors conclude the same, then I think we may see a significant strain on the credibility of the nonprofit signal. (See my post yesterday if you don’t know what I mean). But what if investors take away the lesson that the kerfuffle was a loss for Microsoft, and they decide to avoid partnerships with nonprofits unless they too deeply value the charitable purpose more than their financial returns? That would be a win for the nonprofit sector.
Then, of course, the most interesting question is why OpenAI was formed as a charitable nonprofit in the first place. I’m hesitant to question Sam Altman’s charitable bona fides, but another founder of OpenAI was Elon Musk, who has very conveniently become an easily recognizable villain in the years since OpenAI’s founding. We don’t know who contributed the 130 million dollars of charitable funds that the OpenAI Nonprofit raised over the years, but one wonders what exactly these contributors were thinking. Why did Elon Musk, for example, think that a charity was a better “investment” in the future of AI technology than a for-profit company, given that he’s had some success with for-profit companies? The media coverage has a lot of speculation on that score, but I’m still unsure which of it is true and which is not. I’m looking to you, Jonah Hill, to get to the bottom of this.
Monday, December 4, 2023
A few weeks ago, the Treasury released proposed regulations that apply to so-called “taxable distributions” of donor-advised funds (DAFs). (Previous Nonprofit Law Prof coverage here). For those of you who like Internal Revenue Code sections, these regulations interpret section 4966 of the Internal Revenue Code, which was enacted as a part of Congress’s 2006 attempt to explicitly regulate DAFs.
First, it’s important to mention that these regulations do not provide answers to what I think are the most pressing questions about DAFs. As I have mentioned before, for most of the nonprofitlaw-osphere, the most pressing question about DAFs is whether they should be required to distribute their assets in a timely way. Because Congress has not said anything about this issue (yet?), the Regulations do not address it. As I have also mentioned before, I’m most concerned about DAF “abuses,” especially those that involve distributions to a “conduit” charity. These regulations do not address that issue either, although it is on the IRS’s priority guidance plan. They also do not address the other important parts of the 2006 legislation: sections 4967 of the Code and the amendments to section 4958 of the Code, both of which are also on the priority guidance plan. Therefore, most of what I care about will (hopefully) be addressed in regulations that are still forthcoming.
What do these regulations cover? If you are interested in them generally, many law and accounting firms have published detailed online explanations, including this one from Morgan Lewis that was co-authored by the brilliant Chelsea Rubin, who happens to be a former student of mine (go Eagles!). Generally, “taxable distributions” are distributions from a DAF to any individual or organization that is not a public charity. Section 4966 requires (i) that these distributions be made for a charitable purpose, and (ii) that the DAF sponsoring organization use procedures (called “expenditure responsibility”) to make sure that the funds are used for those charitable purposes. Therefore, to take just one example, taxable distributions under 4966 include distributions used for “lobbying.” The regulations make it clear that DAFs cannot make distributions for the purpose of affecting legislation, and if they make distributions to (non-public charity) organizations for charitable purposes, they must use expenditure responsibility to make sure that none of the funds are used for lobbying.
There is one small part of these regulations that has implications for preventing the use of “conduit” charities. A distribution from a DAF to a public charity is not covered by these requirements, and, of course, once a distribution has been made to a public charity, it can engage in lobbying activity. To mitigate this possible loophole, the proposed regulations include an “special” anti-abuse rule in section 53.4966-5(a)(3). If a distribution is made to a public charity as an intermediary “pursuant to a plan” to avoid the rules, the rules ignore that intermediate step and treat it as “a single distribution.” In other words, if a donor tries to make a distribution from their DAF to a public charity as a step to make a distribution for a noncharitable purpose (like lobbying), then that distribution will be treated as if it was made directly from the DAF for the noncharitable purpose, triggering the penalty excise tax under section 4966. The intermediate distribution to the charity will be ignored. This “special rule” is extremely relevant in the context of section 4966 because it attempts to close a loophole that could permit DAF funds to be used for lobbying. But it also might have implications for closing the “conduit” charity loophole more generally in forthcoming regulations.
On the one hand, closing the conduit charity loophole is an important regulatory goal. On the other hand, this particular rule might be a hard rule to apply. It might be hard for a DAF sponsor trying to make rules to prevent it from happening, especially because so many public charities engage in lobbying activities. What exactly should the DAF sponsoring organization do to make sure that a distribution from a DAF to a public charity is not made “pursuant to a plan” to use the money for lobbying, when the recipient is engaged in lobbying activities? How should the DAF sponsor make sure that the donor does not “arrange for Charity X to use the funds to make [taxable] distributions.” Nor is it obvious what evidence the IRS would need to successfully prove that the donor has made a “plan” or “arranged” for the charity to use the funds for an impermissible purpose. DAF sponsors could reasonably want some guidance from the Treasury about what kind and how much diligence they should perform to avoid the risk of penalties.
Thursday, November 9, 2023
In its 2023 Annual Report, the IRS Advisory Council has one set of recommendations specifically relating to tax-exempt organizations (other than employee plans and government entities). More specifically, the Council made the following recommendations in response to request from the IRS for input on how the IRS could better engage with exempt organizations:
- Prominently promote and highlight available nonprofit resources in outreach materials and websites that target all levels of individuals at various nonprofit organizations . . . .
- Review and improve current resources [including keeping the Tax-Exempt Organization Search updated in a timely fashion].
- Develop additional resources on the following topics of potential interest to exempt organizations: a. Electronic filing requirements b. Information tax return filing deadlines c. Form 8940 d. Public disclosure obligations e. IRS audits of exempt organizations
- Develop new resources on the following topics of potential interest to exempt organizations: a. Annotated Form 990 b. Getting Things Done with the IRS c. Plain English Glossary
- Update the charities section of irs.gov to reflect separate, focused pages of resources for small, mid-size and large exempt organizations . . . .
- Make change of address cards available to exempt organizations . . . .
- Require exempt organizations to have an e-mail address for more efficient and effective communications. Require exempt organizations to include the e-mail address on Form 990 and expand the EO Business Master File to include an e-mail column.
- Update IRS documentation to recommend . . . that small exempt organizations obtain an “organization e-mail” that can be passed down to future volunteer Board members.
- Consider increasing accessibility to Form 990-EZ for self-preparation by exempt organizations.
- Develop training sessions . . . to match the level of the audience in attendance to ensure understanding of the material, highlighting the exempt organization resources available at irs.gov for attendees seeking more detailed information. . . . .
- Increase communication via partnerships with states, community foundations and nonprofit associations to expand communication channels through participation and/or inclusion of IRS materials in their outreach/engagement efforts. . . . .
Monday, November 6, 2023
It what has become a regular occurrence, the Internal Revenue Service recently issued another warning about fake charities. The announcement does not mention any specific high-profile disaster likely to attract substantial donations or other event that triggered this particular warning, although there are certainly enough such events recently to choose among. This is in contrast with last year's warning, which stated it was timed to coincide with international Charity Fraud Awareness Week (which started October 17th in 2022 but will not start until November 27th this year), the fall 2021 warning, which stated it coincided with Giving Tuesday (November 28th this year), and an earlier 2021 warning, which was part of the IRS' annual Dirty Dozen campaign.
This year's warning repeats common sense precautions, including using the IRS Tax-Exempt Organization Search (TEOS) function to verify that the requesting organization is in fact a charity for federal income tax purposes and being wary of common scam techniques such as being pressured to make an immediate payment.
Friday, October 13, 2023
The IRS has issued final regulations (T.D. 9981) relating to supporting organizations and amendments by the Pension Protection Act of 2006 (yes, 2006) to Internal Revenue Code section 509(a). As compared to the proposed regulations, the final regulations clarify the definition of "control" for persons who are restricted with respect to donating to the supporting organization because they control the governing body of the supported organization. The final regulations also modify certain requirements for Type III supporting organizations and make some non-substantive, technical corrections.
Coverage: Bloomberg Law (subscription may be required).
Wednesday, October 11, 2023
Two unrelated federal court decisions last week demonstrate the creativity of individuals seeking to promote the abusive use of the charitable contribution deduction. One involved guilty verdicts in a massive syndicated conservation easement case and the other a default judgment on liability for marketing of an inflated valuation scheme.
The U.S. Department of Justice announced the guilty verdict with a press release titled Two Tax Shelter Promoters Found Guilty in Billion-Dollar Syndicated Conservation Easement Tax Scheme. Here are some details from the press release:
A federal jury sitting in Atlanta convicted Jack Fisher and James Sinnott today of conspiracy to defraud the United States, conspiracy to commit wire fraud, aiding and assisting the filing of false tax returns and subscribing to false tax returns. Fisher was also convicted of money laundering.
. . . .
According to court documents and evidence presented at trial, Fisher and Sinnott designed, marketed and sold to high-income clients abusive syndicated conservation easement tax shelters based on fraudulently inflated charitable contribution tax deductions, promising them deductions 4.5 times the amount the taxpayer clients paid.
. . . .
In total, the defendants sold over $1.3 billion in fraudulent tax deductions through this scheme.
Interestingly, a third defendant was acquitted. And it appears that the testimony of an accountant, who had previously pleaded guilty for his role in the scheme (likely the guilty plea reported here), was an important part of the government's case. It also appears that an appraiser who pleaded guilty earlier this year was involved in the same scheme.
The liability was found by a federal district court in American Properties, Co. G.P. v. The Welfont Group, LLC, et al. The plaintiff alleged that "it sold real property below market value based on Defendants' false representation that it would receive a substantial tax deduction for doing so." The plaintiff further alleged that the grounds for the deduction was to have been a purported qualified appraisal of $4,755,000 issued in connection with the plaintiff's sale of the property to a charity for $2,160,000, which the IRS determined was not a qualified appraisal and that was under any conditions undermined by an alter ego of one of the defendants immediately purchasing the property from the charity for $2,650,000. Because the defendants did not appear to defend themselves, the court entered a default judgment as to liability under several state causes of action based on the plaintiff's factual allegations. but declined to determine the damages amount (asserted by the plaintiff to be $1,321,013) at this time as the plaintiff is still appealing the IRS' adverse determination against it on audit.
The IRS recently released its Tax Exempt and Government Entities Fiscal Year 2024 Program Letter. (Past TEGE program and accomplishments letters can be found here.) I was struck by two aspects of the letter, based on a little reading between the lines.
First, there is a continued emphasis on "[d]ramatically improv[ing] services to help taxpayers." While a bit opaque, it appears that doing so will require prioritizing the allocation of IRS employees - i.e., people - to this task. And that likely will be good news for exempt organizations and their representatives, especially given the TIGTA report released last week titled Thousands of Tax Exempt and Government Entities Taxpayers May Not Have Received Satisfactory Responses to Their Questions. The summary for that report noted:
When TE/GE taxpayer requests are unable to be resolved over the telephone, they are referred for additional action via Forms 4442, Inquiry Referral. From January 1, 2017, through May 15, 2022, the IRS may not have provided satisfactory responses to nearly 30,000 TE/GE taxpayer inquiries, including approximately 20,000 taxpayers who had to call twice and 10,000 taxpayers who had to call three or more times for the same tax return. The IRS does not track or monitor taxpayer inquiries after their questions are referred via Forms 4442.
Second, given this prioritization of people, how will the IRS fulfill its (already neglected) enforcement responsibilities in this area? The answer is it will be "smarter" - in part, by relying even more heavily on artificial intelligence tools, as indicated by these two priorities:
Collaborate with Research, Applied Analytics, and Statistics (RAAS) to continue building and refining Exempt Organizations exam case selection using advanced modeling techniques.
Continue to work with RAAS to develop an Artificial Intelligence capability to review and prioritize referrals received on Exempt Organizations.
RAAS is the part of the IRS that implements big data projects. It was formed in 2016 by the merger of the Office of Research, Analysis, and Statistics with the Office of Compliance Analytics. (See this TIGTA report on RAAS for more details.)
Wednesday, October 4, 2023
Last Friday, the Treasury Department issued its annual “priority guidance plan.” In the Exempt Organizations category, it listed 10 items, 9 of which are the same as they were last year. (Thanks Paul Streckfus for the summary). Some of the items have been on the list for many years, including the following, which is celebrating its ten-year anniversary on the list: “5. Guidance under §4941 regarding private foundation’s investment in a partnership in which disqualified persons are also partners.”
For the uninitiated, section 4941 prohibits self-dealing between private foundations and certain disqualified persons. The restrictions on self-dealing are much stricter than the restrictions that apply to transactions between public charities and their disqualified persons or than the restrictions that would be imposed by state fiduciary duty standards. Therefore, they have the potential to significantly impact investment strategies by private foundations when those strategies include entities that also have disqualified persons as investors.
The ten-year anniversary of this item on the Treasury’s priority guidance plan is an opportunity to revisit a fantastic six-year-old article by Elaine Waterhouse Wilson, a professor at West Virginia University College of Law: Is Consistency the Hobgoblin of Little Minds? Co-Investment Under Code Section 4941. The article provides detailed background about private foundation investing practices and their interaction with multiple legal regimes. It then describes several private letter rulings that the IRS issued in the early 2000s that, “allow such an arrangement, on the notion that when a private foundation invests in a partnership, it is not entering into a transaction of any kind with either the partnership itself or the other partners.” Because there is no transaction, “there can be no act of self-dealing.” Wilson argues that this theory is inconsistent with other code provisions and state-law partnership law, and so creates unnecessary problems. Instead, she urges the Treasury to “provide a limited regulatory safe harbor allowing such transactions” but make sure that the guidance communicates that “the subsequent use of the asset in a manner that is not consistent with proportionate co-ownership may be an act of self-dealing[.]” Professor Wilson’s treatment of the subject is required reading for anyone interested in the issue, and well illustrates how difficult it is to craft good regulatory guidance.
Tuesday, September 26, 2023
In my recent post, "Can You Smell What the Rock is Donating?", I talked a little bit about a number of different nonprofits that were accepting donations from some high profile folks, such as The Rock, in order to provide charitable support for those involved in the SAG-AFTRA and the (hopefully now ended) Writers' Guild strike. Well, The Rock and his charitable donations are back, at least indirectly. With a h/t to this thread started by Andrea Carr CPA (@andreacpa0 on X formerly known as Twitter) - she found the following on the website of the Entertainment Industry Foundation. The EI Foundation is sponsoring a "People's Fund of Maui," which is giving "direct financial assistance to Maui community members experiencing devestating losses form the fires in Lahaina and Kula." Apparently the People's Fund will make monthly payments to impacted residents of Maui for as long as it has funds, which include some hefty initial gifts from Oprah and, you guessed it, The Rock. Which is amazing all around.
In the not-so-amazing category ... in the FAQs for applicants, the website states:
Are there any restrictions on how funds are used?
Financial disbursements provided by the People's Fund of Maui are considered Qualified Disaster Relief Payments and are intended for the following expenses... (edited)
Will I need to report the monthly payments on my taxes?
No, you will not need to report the monthly income payments on your taxes. Payments will be characterized under the IRS's "charitable gift status" which is non-taxable and only needs to be reported to the IRS if individuals receive $17,500 or more in one year. Individuals will only need to report this income payment if they received additional cash/asset gifts that bring the total to more than $17,500 a year.
Um... no. I mean, they aren't taxable, so that part is right but otherwise... no.
Whenever I talk about gifts under Section 102 (and our old friend, Commissioner v. Duberstein) to students in Tax I class, I always mention that the INCOME tax treatment of gifts is different from the ESTATE & GIFT tax treatment of these items. It is a Federal income tax class so I always debate whether it is worth precious class time to go through the difference, but in my experience there is so much confusion on this point that it comes up year after year. So thanks, EI Foundation, for validating my teaching.
Revenue Ruling 2003-12 posits the following hypo in Situation 2:
Situation 2. O, a charitable organization described in § 501(c)(3) that is exempt from tax under § 501(a), whose purpose is to provide assistance to individuals who are affected by disasters, also makes grants to distressed individuals affected by the flood described in Situation 1. The grants will pay or reimburse individuals for medical, temporary housing, and transportation expenses they incur as a result of the flood that are not compensated for by insurance or otherwise.
Substitute "flood" with "wildfire" and well, you have Situation 2 in Maui - I do note that Situation 1 in the Revenue Ruling involves a Presidentially declared disaster as defined in Code Section 1033(h)(3), which appears to include the Hawaii Wildfires.
In any event, I'm not sure it really matters. Rev. Ruling 2003-12 concludes with regard to Situation 2 (emphasis added):
In Situation 2, the grants made by O are designed to help distressed individuals with unreimbursed medical, temporary housing, or transportation expenses they incur as a result of the flood. Under these facts, O’s grants are made out of detached and disinterested generosity rather than to fulfill any moral or legal duty. Thus, the grants are excluded from the gross income of the recipients as gifts under § 102. Because payments by non-governmental entities are not considered payments for the general welfare, the grants made by O are not excluded from the recipients’ gross income under the general welfare exclusion. Rev. Rul. 82-106, 1982-1 C.B. 16. It is not necessary to reach the question of whether § 139 applies to the grants.
Accordingly, assistance from a charity to a disaster recipient are straight up gifts under Section 102 and Duberstein. Revenue Ruling 2003-12 is really clear that you don't need to get to the issue of whether the funds are "Qualified Distaster Relief Payments" under Code Section 139. Code Section 139 is important for GOVERNMENT payments for disaster relief and potentially for disaster relief payments from an EMPLOYER - but not grants from a private charity.
And finally, as Andrea Carr CPA put it on X/Twitter:
i'm tired and exhausted, what is "charitable gift status"? Does someone know the IRC that covers this? Where is $17,500 coming from?
I'm guessing here because it is a common mistake, but maybe they are referencing the gift tax annual exclusion under Code Section 2503(b), which is $17,000 for 2023 after inflation adjustment - as one X/Twitter person indicated, $17,500 could be a typo? Of course, the gift tax doesn't apply to transfers to charity under Code Section 2522 (assuming we don't have DAF or supporting organization issues), so The Rock and Oprah are safe on that. However, even if that's the case, the gift tax falls on the DONOR of the gift - not the recipient (assuming we don't have a net gift situation), so at no point would the gift tax exclusion impact recipient of the funds - and even then, it would never impact the income tax treatment of the funds. Because this is a gift tax exclusion. Different tax. And the gift tax doesn't even apply here. So...
I got nothing on "charitable gift status."
So, EI Foundation, I know I'm coming down pretty hard on you here and I'm sorry for that. Some on X/Twitter blame AI (see ... all my posts align in the universe). Maybe there's something we can't tell from the information you've put up on your website that would change this anaylsis. But let me repeat that the things you are doing, not only for Maui but for all of the other charitable purposes and recipients you fund, are really really awesome and thank you for all you do in that regard.
Thursday, August 17, 2023
Last Saturday, Forbes reported on the indictment of Michael Meyer for the promotion of his allegedly fraudulent charitable-donation tax shelter, the Ultimate Tax Plan. Meyer and his associates and the charities he created have been the subject of federal law enforcement interest for more than a decade, and the indictment recounts numerous acts of fraud and deception. Additional information can be found in the Tax Court petition filed in July by the Family Office Foundation, a charitable entity created by Meyer, to contest its denial of tax-exempt status. The appendix includes the adverse determination letter from the IRS, which provides a detailed description of the Ultimate Tax Plan and how it was supposed to work.
The acts described in the indictment are clearly fraudulent. As the Forbes article points out, many of the transactions involved backdating transaction documents to a previous year, and “[a]nything that involves backdating is bad.” Backdated transactions reflect clear deception, and “[j]uries can … easily understand that one cannot take a deduction for 2016 for something that didn’t happen until 2017.” Furthermore, “if a tax strategy has a name, then it probably doesn’t work.”
However, the strategy includes at least one component that the IRS appears to view as impermissible that I would love to learn more about, partially because it is facilitated by donor-advised funds. The Ultimate Tax Plan involves the following structure. First, a donor-advised fund sponsoring organization (let’s call it “Charity”) is created. Second, each client creates an LLC with controlling interests and noncontrolling interests. The client retains the controlling interest and donates the noncontrolling interest to the Charity. The client then takes a charitable tax deduction for fair market value of the noncontrolling LLC interest. In the actual Ultimate Tax Plan, this transaction (allegedly) includes all sorts of shenanigans like the aforementioned backdating, transactions that appear on paper but were never executed, dramatic mis-valuations of the donated noncontrolling LLC interest, an explicit promise that the Charity would sell back the LLC interest to the “donor” at a fraction of the value taken as a tax deduction, and many others. But more interesting to me than all the shenanigans is the fact that the IRS appears to take the position in the adverse determination letter that the donation of noncontrolling LLC interests to the Charity inherently fails to qualify as a charitable contribution because “the Bogus Charities never had dominion or control over any of the purported contributions.” By permitting the donor to transfer a noncontrolling interest in the LLC that the donor continues to control, “the donor can take a tax deduction for a ‘charitable contribution’ while maintaining the economic benefit and control of the donated asset.”
Again, the (alleged) shenanigans clearly make Meyer’s scheme fraudulent and cause the Family Office Foundation to fail to qualify as a tax-exempt organization. But I’m not sure the IRS is on such firm legal grounds if it wants to argue that a donation of a noncontrolling interest in an LLC that continues to be controlled by the donor automatically fails as a charitable contribution because the charity never obtains dominion and control. (I’m sure some readers know this law better than me, and would love help if I’m just wrong about this). Obviously, any time a charity receives a donation of corporate stock, it does not thereby receive the right to obtain any distribution from the stock or demand that the company repurchase it. Generally, at least for publicly-traded stock, that’s not a problem for the charity because it can sell the stock and use the proceeds to pursue its charitable activities (or not, at its discretion). My understanding is that the general principle is true for donations of illiquid property as well: the fact that there is not a ready market for a donated asset may affect the valuation of that asset (a so-called liquidity or marketability discount), but it does not render the donation void. A charity that receives a donation of an illiquid asset, like a noncontrolling interest in a closely held firm, is considered to have sufficient dominion and control over the asset to treat the transaction as a completed donation. The fact that the charity doesn’t have the power to compel the firm to make distributions or convert the ownership interest into cash does not negate the fact of the donation. The fact that the charity has expressly agreed to sell the property back to the donor at a fraction of its reported value of course would negate the substance of the transaction, but not the mere fact that it is a noncontrolling interest in a firm that the donor continues to control.
It is true that there is a poorly defined body of law that holds that a charity has to undertake at least some actual charitable activities in order to qualify for exemption, and so the charity has to actually receive some cash from somewhere that it can spend on pursuing its charitable activities. The IRS determination letter calls this the “substantial present economic benefit test.” But for the purposes of our hypothetical, let’s assume that the Charity manages to get its hands on enough cash to satisfy the substantial present economic benefits test.
The reason I’m interested in this structure, if it could be pursued without all the shenanigans that make it obviously illegal, is because it appears to be substantially facilitated by the current legal treatment of Donor Advised Funds. If the Charity had to be a Private Foundation because it was receiving donations from a single person or family, current law would prevent it from continuing to own a substantial interest in the donated LLC, taking a deduction for the fair-market value (rather than basis) of the donated LLC interest, and from spending less than 5% of its assets every year, etc. In other words, the Family Office Foundation case might be an example of a structure that (if dramatically cleaned up) still illustrates an abusive but currently legal use of Donor Advised Funds. The big commercial DAF sponsoring organizations, like those created by Fidelity and Vanguard, would never permit such an abusive use even if legal. I think the IRS and Congress should focus on relatively low-hanging fruit of closing these DAF loopholes rather than getting tied up deciding whether to make dramatic changes to the DAF laws.
-Benjamin M. Leff
Friday, August 4, 2023
- The Wall Steet Journal reported (subscription required) that "California Nonprofit Hospitals Turn to Bankruptcy for Leverage Against State." According to the article, nonprofit hospitals in California are using bankruptcy filings to push the state's Attorney General's Office to consider permitting sales or mergers that otherwise might not make it through the state's review system for such transactions.
- In South Dakota, a second attempt to merge nonprofit rural health system Sanford Health with the Minnesota-based M Health Fairview (associated with the University of Minnesota) failed according to a report by Dakota News Now titled "What’s next for Sanford, Fairview after merger falls apart?" According to the story, at least one of the obstacles was Minnesota legislation requiring additional due diligence by state officials before any merger. Additional coverage: Fierce Healthcare; MPR News.
- A N.Y. Times opinion piece by a former physician who now works for KFF Health News titled "Your Exorbitant Medical Bill, Brought to You by the Latest Hospital Merger" (subscription required) details both the extent and perhaps the inevitability of health care consolidation. It notes that 75 percent of health care markets are now considered highly consolidated. The FTC has recently become more active in blocking mergers, stopping seven in the past two years, but this has occurred while 53 mergers and acquisitions went forward in 2022. And state legislatures can help protect healthcare systems from antitrust scrutiny by passing so-called Certificate of Public Advantage laws.
Thursday, August 3, 2023
The most recent IRS Tax Stats Dispatch (sign up here) includes new data from recent exempt organization returns.
One set of data consists of selected financial data from Form 990s and Form 990-EZs filed in Calendar Year 2022. For the over 320,000 Form 990s, 256 data fields are reported, and for the over 230,000 Form 990-EZs, 72 data fields are reported. Be warned that the extract spreadsheets are very large (hundreds of megabytes for the Form 990 extract file and tens of megabytes for the Form 990-EZ extra file) and so take a little while to download and open.
The other set of data consists of aggregate tables with selected information from private foundation Form 990-PFs for Tax Year 2019. These include the number of returns filed and selected financial data by asset size for both nonoperating and operating foundations, income statements and balance sheets by asset size, and tables updated to include tax year 2019 data for nonoperating private foundations showing trends since 1985 in (1) disbursements for charitable purposes (constant and current dollars) and (2) noncharitable-use assets and qualifying distributions. Selected tax year 2019 data for section 4947(a)(1) charitable trusts treated as foundations is also provided.