Nonprofit Law Prof Blog

Monitoring the Efficacy of Carbon Credit Cookstove Projects

A fascinating article on carbon credits from cookstove projects ran in the print edition of the Washington Post today. Generally, cooking over open wood or charcoal fires is dangerous and environmentally harmful, and so facilitating upgrades to domestic cookstoves has been viewed as beneficial. Because of the environmental harm, selling carbon credits based on these upgrades has been viewed as a source of funding for cookstove projects designed to accomplish this goal. The majority of the article describes the failures of a specific cookstove project in Mozambique, apparently because of the faulty design of the stove itself, which was designed to be cheap and easy to repair, but was just too cheap to be functional in the area investigated.

The article is full of interesting information, not just for people interested in carbon credits, but for anyone interested in attempts to improve the world. While I don’t know much about the carbon credit market, the article caught my eye partially because I wrote an article back in 2015 about joint ventures between for-profit and nonprofit firms, and the example I chose to illustrate the risks and potential benefits was a (fictional) cookstove project in Mozambique. The article in the Post almost seems like a parable designed to illustrate the core idea behind the economic justification for the non-profit form: that when the quality of services is hard for a funder to monitor, the for-profit business form may be inefficient. Here, the funder is the purchaser of a carbon credit, and the “service” is the replacement of an inefficient cookstove with a more efficient one. Unless there is robust monitoring of the effectiveness of the replacement, the business is incentivized to cut corners. That’s not some evil greedy perversion of human relations, it’s how competition works. The article quotes the CEO of a “cookstove sensor company” as saying, “The most cynical way to think about it is, as long as I shove a stove into a lady’s house, I’m going to get the carbon credit.” If the funder just wants the credit, its going to want the least expensive credit.

One solution to that is for carbon credit purchasers to require better monitoring, for example through cookstove sensors, recognizing that a credit based on false information has no actual value. Another solution, of course, is for government(s) to regulate the carbon credit market to require a greater level of monitoring. Another solution is monitoring by charitable nonprofits, which is discussed in the article. Significant information in the article comes from Verra, a 501(c)(3) organization devoted to verifying carbon credit programs. But, of course, as in any certification program, the question of the quality of the certification, and the monitoring on which it depends, is key to understanding how much trust can be placed in its efforts. Someone has to believe that high-enough quality monitoring is worth its price to someone. And, as always, detailed reporting by trustworthy media, like the Post, can have an important role to play as well, but someone’s got to pay for that too.

--Benjamin Leff

While I Wait for Women’s Single Sculls Repechages…. Exemption and the Olympics!

So … I never thought I’d see a concert lineup that included the metal band Gojira (complete with bloody severed heads in the background- BOLD!), Lady Gaga doing the can-can, and Celine Dion.   But here we are…. The 2024 Paris Summer Olympics opening ceremony.  And I’m down for it.  All of it.

I am an Olympics nerd. I have already watched Norway v. Sweden in Women’s Team Handball.  I’m disappointed I can’t find the Archery ranking rounds that happened yesterday streaming on Peacock.  I will wake up at 5 am to watch doubles badminton tomorrow.  I’m that person.

So, it seems only appropriate to do a little review of the tax-exempt status of the Olympics for the blog today, because there are no other competitions to watch on opening ceremony day and I’ve already watched all the available Rugby 7s replays (five stars – will watch again.)  So here’s a deep dive (pun intended) into the Olympics.

Section 501(c)(3) and Section 501(j)

If you are reading the Nonprofit Law Prof Blog, you probably already know that Section 501(c)(3) describes organizations that “foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment)…”   If, however, you are a “qualified amateur sports organization” under Section 501(j), you are exempt from the prohibition on providing athletic equipment.

Prior to 1976, the IRS would grant exempt status to athletic organizations if they could show that they were charitable or educational.   But those were pretty narrow buckets.   The amateur sports language was added to Section 501(c)(3) in 1976, but the IRS apparently took the provision of equipment provisions seriously – From a 1987 EO CPE Text: 

For example, an organization which, as part of its coaching program, made videotapes of athletes for the purpose of analyzing their performance could not be granted exemption as an amateur athletic organization under IRC 501(c)(3), since the use of videotape equipment was considered the provision of equipment.

As we all know from watching Cool Runnings, bobsleds are really expensive, so this simply could not stand. Section 501(j) wasn’t added until 1982.  While the definitions of a “qualified amateur sports organization” and the general 501c3 language are close, they aren’t completely co-terminus.  But it is clearly intended to cover Olympic-type organizations.   See e.g., GCM 39459, finding as exempt the organization for USA women’s bowling even though they supplied uniforms and equipment.

Bowling is not an Olympic sport but recognized by the US Olympic Committee and eligible for the Pan Am games, which is enough.  Apparently, bowling was a demonstration sport at the 1988 Seoul Summer Olympics and has lobbied to be added, making the short list for the 2020 Tokyo Summer Olympics but missing the cut to surfing, skateboarding, and sport climbing.  BUT I DIGRESS.

Your organization needs to be organized primarily to cater to serious athletes, so hosting running events open to all levels and not at Olympic distances didn’t get exempt status – it was deemed more recreational in nature. 

US Olympic & Paralympic Committee

So the USOPC is recognized by the International Olympic Committee as the National Olympic Committee for United States.  According to its website, it’s a “federally chartered nonprofit corporation” – you might remember my Veterans’ Day post on the USO, which is the same thing.  It’s a 501c3 and a public charity under 170(b)(1)(a)(vi) - the USOPC’s most recent Form 990 is in fact available on its website. It lists itself as a corporation formed in 1950 with a legal domicile in Washington DC but an HQ in Colorado Springs, Colorado.  A really interesting supplemental note on its Schedule D – wasn’t able to find a lot on this, does anyone have any details???

INSTALLMENTS FOR THE BROADCAST MEDIA RIGHTS, FOR THE OLYMPIC AND WINTER OLYMPIC GAMES, ARE HELD BY USOPC IN TRUST. THESE PAYMENTS ARE RECORDED ON THE STATEMENT OF FINANCIAL POSITION AS ASSETS HELD ON BEHALF OF OTHERS UNTIL THE GAMES OCCUR AND CERTAIN REQUIREMENTS ARE MET, THEN THE CASH WILL BE RELEASED AND THE AMOUNT WILL BE RECORDED AS REVENUE.

As a final note on related entities, there is a US Olympic and Paralympic Foundation, which “generates philanthropic support to empower Team USA athletes to achieve sustained competitive excellence and well-being.”  It appears that the USOPC doesn’t support athletes directly; athlete support comes from the USOP Foundation.  Formed in 2013 out of Colorado, it lists itself as a 170(b)(1)(A)(vi) on its Form 990.  The Foundation reports a management agreement with the USOPC on its Part VI and Schedule R.

National Governing Bodies.

If you look on the lists of grants made by the USPOC, it includes the national governing bodies for the various sports.  The list includes, USA Artistic Swimming,  the United States Curling Association (which is so much fun – try it if you can) and the Unites States Amateur Confederation of Roller Skating (OMG can we have roller derby in the Olympics?  I mean this year, breaking is an Olympic sport, so why not?  It does make me feel bad for bowling…) They are all listed as separate Section 501c3 organizations.

Because I had to, obviously, I did check out the US Amateur Confederation of Roller Skating, which is d/b/a USA Roller Sports (way better) and headquartered in that hotbed of roller sports, Nebraska (why Nebraska?  Any roller skaters out there know?)  Its 990s are also available, although curiously they report that they are a 509(a)(2) public charity.  

Apparently, rink hockey played on skates was a demonstration sport in the Olympic Games in Barcelona in 1992.  They tried for the 2016 Rio Summer Olympics but lost out to rugby 7s (I see why though – super fun) and golf.  BUT I DIGRESS.

International Olympic Committee. 

I would be remiss if I didn’t mention them.  It is an association under Swiss law, but many international organizations get exempt status from the IRS if they are worried about US source income – so I figure I’d check on the IRS’ website.  Et Voila!!!! And here’s its Form 990.  Interestingly, the list themselves as a Section 501(c)(4) organization, formed in 1894.  I immediately wondered if there is a US Friends of the IOC, or something like that, to take US-based charitable contributions (since 170 deductions are limited to domestic gifts… and they are a 501(c)(4) anyway). 

A quick check of the IOC’s website didn’t show anything that looks like a US fundraising arm, so if anyone has an info, let me know.   I’d keep looking, but it’s getting kind of late and I need to get some sleep before doubles badminton qualifying rounds at 5 am.

Frenziedly, eww

ICNL Report on Foreign Influence Registration Laws

Last week, my fellow blogger Joseph Mead posted a link to a report “Ten Major Threats to U.S. Civil Society” by the International Center for Not-For-Profit Law, which I highly recommend for anyone worried about trends in U.S. civil society. But I also wanted to mention another report issued by ICNL last month, Foreign Influence Registration Laws and Civil Society. This report is primarily focused on laws directed at monitoring, threatening, or attacking NGOs with foreign ties or funding by governments other than the United States.  But the report points out that many foreign governments “have sought to justify and defend their overbroad and restrictive foreign influence laws by pointing to similar measures in historic democracies, most notably the 1938 Foreign Agents Registration Act (FARA) in the United States.” A panel at the ABA Tax Section EO Committee meeting last week included both Doug Rutzen, the director of ICNL, and Bryson Morgan, an attorney at Caplin & Drysdale. Morgan explained how pending regulations under FARA could broaden the types of persons subject to the FARA reporting regime (which is already very broad) and further undermine U.S. civil society groups with international connections. Some of us in the nonprofit sector like to think of the U.S. as an international model for nonprofit sector laws, but of course that is only part of the story.

-Benjamin Leff

Global Fund Approves US$9.2 Billion in New Grants to Accelerate Fight Against HIV, TB and Malaria in More Than 70 Countries

I came across this press release today. It had a feel-good ring to it -- some good news to start the new year. Here it is, straight from the source:

GENEVA – The Global Fund to Fight AIDS, Tuberculosis and Malaria has approved US$9.2 billion for grants starting in 2024. 152 new grants will begin implementation this month, supporting more than 70 countries to continue their lifesaving work to end the three epidemics and build sustainable and climate-resilient systems for health over the 2024-2026 period.

In November 2022, following a record-breaking Seventh Replenishment outcome of US$15.7 billion, the Board of the Global Fund approved the largest-ever investments to boost the fight against HIV, TB and malaria and strengthen health systems: US$13.7 billion, including US$13.1 billion in country allocations, to more than 120 countries over the 2024-2026 period.

The remaining country allocation funds to invest over the next 3 years – up to US$4 billion – are scheduled for later start dates.

Peter Sands, Executive Director of the Global Fund, said: "Sustaining our progress against the world’s deadliest diseases and helping build more resilient and inclusive systems for health will save millions of lives, address glaring health inequities and enable communities to flourish. At a time when so many of the poorest and most vulnerable people are also being affected by climate change, conflict, economic stresses and an erosion of human rights, there is an imperative to ensure sustained and adequate funding of such demonstrably effective lifesaving interventions. We are extremely thankful to our donors for their continued support and to all our stakeholders across the partnership who have worked so hard to develop these new grants so quickly and effectively.”

Over the past year, country partners have worked with Country Coordinating Mechanisms (national government, community and health experts that develop and guide Global Fund-supported programs in a country) to develop detailed funding requests for programs to respond to the epidemics at the country level. As part of the Global Fund’s grant-making process, all funding requests are reviewed by an independent Technical Review Panel and then by the Grant Approvals Committee for quality and comprehensiveness before going to the Global Fund Board for final approval. Once the Board approves a grant, the Grant Confirmation is signed, and the Global Fund can process the first disbursement.

In addition to the core grants awarded, the Global Fund continues supporting countries to reinvest funds from the COVID-19 Response Mechanism (C19RM) in health systems strengthening and pandemic preparedness. This includes over US$2 billion in investments for medical oxygen, community systems and community health workers, supply chain, laboratories, surveillance, data systems and inter-operability, and waste management.

As I said before, this is surely good news with which to start the new year. May the grants be used wisely.

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

 

Inaugural Newsletter for International Charity Law Network

The new International Charity Law Network has published its inaugural newsletter. Here is the introduction:

Dear International Charity Law Community,

Welcome to the inaugural newsletter for the new International Charity Law Network! In September 2022, over two dozen charity law scholars from five continents gathered at the University of Notre Dame’s London Global Gateway to share their ongoing work and to discuss formation of the Network. By the end of that meeting it was clear that charity law scholarship would greatly benefit from opportunities for scholars to learn and collaborate across borders. This newsletter is one of the fruits of that discussion, along with the International Charity Law Network website and a planned 2024 gathering.

Please see below for more information about the Network, upcoming events relating to the study of charity law internationally, calls for papers, and recent research. Please also share this newsletter with academics, practitioners, and regulators who are interested in charity law. Anyone who is interested in receiving future issues of the newsletter directly can sign up here.

If you have any research, upcoming events, calls for papers, or other news that we should include on the Network’s website and in future newsletters, please contact Lloyd Mayer at [email protected].

We look forward to collaborating with you.

International Charity Law Network Board of Advisors (Oonagh Breen, Matthew Harding, Lloyd Hitoshi Mayer, Debra Morris, Tang Hang Wu, Mukami Wangai)

Lloyd Mayer

NYT: "Donors Are War-Weary, So Ukrainian Soldiers Get Creative for Funds"

As the war over Russia's invasion of Ukraine drags on (seventeen months and counting), the N.Y. Times reports (subscription required) that Internet donations to support Ukraine's efforts are understandably started to lag. Yet the needs are as greater or greater than ever, so Ukrainians are getting creative in their fundraising. This includes a Kyiv art museum auctioning off war memorabilia as well as continuing fundraising efforts by charities created to support the Ukrainian military, such as the Come Back Alive foundation.

Lloyd Mayer

2023 Global Philanthropy Tracker Reports $70 Billion in 2020 Cross-Border Philanthropy

The Lilly Family School of Philanthropy at IUPUI has published the 2023 Global Philanthropy Tracker. Its key findings include:

In 2020, 47 countries representing 61 percent of the global population and 85 percent of global gross domestic product contributed USD 70 billion in philanthropic outflows, and USD 841 billion when adding together all four cross-border resource flows—philanthropic outflows as well as official development assistance, individual remittances, and private capital investment (see Figure 1). Philanthropic outflows represent 8 percent of the total cross-border resources.

Philanthropy proved to be resilient during the year 2020, with only a small decline of 0.5 percent from USD 71 billion in 2018. About 60 percent of the 47 countries had updated data that are directly comparable to the amount in 2018. Among this subgroup of countries, philanthropic outflows went up modestly by around 4 percent, though the change varied greatly by country.

Lloyd Mayer

Haddad & Sundstrom, Foreign agents or agents of justice? Private foundations, backlash against non-governmental organizations, and international human rights litigation

Heidi Nichols Haddad (Politics, Pomona College) and Lisa McIntosh Sundstrom (Political Science, University of British Columbia) have published Foreign agents or agents of justice? Private foundations, backlash against non-governmental organizations, and international human rights litigation, 57 Law & Society Review 12 (2023). Here is the abstract:

The premise of Russia's 2012 “Foreign Agents” Law, one of the first such laws restricting foreign funding for non-governmental organizations (NGOs), is that foreign monies equal foreign agendas. Since then, over 50 countries have adopted similar laws using a similar justification. This paper interrogates this claim of foreign donor influence through examining legal mobilization by human rights NGOs at the European Court of Human Rights (ECtHR). We track donor support for litigation by providing an overview of all foundation grant flows relating to strategic litigation for 2013–2014, and then matching the granting activities of two major U.S. foundations over 14 years to human rights NGO participation in cases before the ECtHR. Further, through case studies of Russian NGOs, we assess the causal role that donor support has played in facilitating their increased involvement in ECtHR litigation. The combined analysis indicates broad patterns of private foundation support to litigating NGOs, but uncovers no evidence that foreign donors were “pushing” NGOs toward litigation as a strategy, but instead more evidence suggesting that NGOs convinced donors to support human rights litigation. Despite the inaccuracy of the justification underpinning Russia's foreign agent law, the law threatens the survival of human rights organizations.

Lloyd Mayer

Synge, The University-Charity

Hot off the presses is a new book by Mary Synge (Hon Senior Fellow, University of Melbourne; Hon Senior Research Fellow, University of Liverpool; Associate Professor, University of Reading), The University-Charity. Here is the description:

Most universities are described as either registered or exempt charities, but very little attention is paid to their charitable status, or its significance.

For the first time, this book examines universities through a charity law lens. It interrogates – and challenges – the proposition that all not-for-profit universities are charities as a matter of law, and examines the consequences of charitable status: both in terms of the way universities operate and in terms of their relations with the State. Charity law has a valuable contribution to make to current debates surrounding university practices, not least in respect of education and research, executive remuneration, and governance. It also has a critical role to play in marking out – and defending – the boundary between charity and government. The University-Charity examines the legal and regulatory framework, and asks to what extent universities demonstrate that vital ‘hallmark of charity’: the need to be – and to remain – independent of government. The recent transactions involving the College of Law and Regent’s University, both formerly charitable institutions which are now operated on a for-profit basis, are also examined against a charity law framework.

It will be seen that the University-Charity can be expected to behave differently from other universities, and to be treated differently.

Lloyd Mayer

CIVICUS, People Power Under Attack 2022

Last month CIVICUS issued a new report, People Power Under Attack 2022, highlighting the deterioration of civic freedoms in many countries. Here are excerpts from the press release announcing the report's release:

• Civic freedoms are under severe attack in over half the world’s countries
• Downgraded countries include: Russia, Myanmar, Tunisia, Guatemala and the UK
• Top violations include: detention of protesters, attacks on the free press and a range of harassment tactics being used against activists and journalists

Civic freedoms are being curtailed and violated in a growing number of countries. The fundamental rights to freedom of expression, peaceful assembly and association have experienced a further decline, according to a new global report released today by the CIVICUS Monitor, an online research platform that tracks fundamental freedoms in 197 countries and territories.

The new report, People Power Under Attack 2022, shows that more people than ever before live in countries where state and non-state actors are routinely allowed to imprison, injure and kill people for exercising their fundamental freedoms. More than two billion people or 28 percent of the world’s population live in countries rated as ‘closed’, the worst rating a country can receive by the CIVICUS Monitor including new countries and territories: Afghanistan, Myanmar, Russia, Hong Kong and Tajikistan. In total there are 27 countries and territories with this rating.

The attacks on civil society are not limited to authoritarian regimes, the operating environment of civil society organisations and activists is becoming more restricted in democratic states as well. In some of the more established democracies, the United Kingdom and Greece, civic freedoms have also eroded. Both countries have been downgraded to ‘obstructed’.

The latest edition of the global assessment also looks at the most common restrictions to civic rights. The detention of protesters, attacks on journalists and the harassment of civil society activists are some of the most prevalent violations from 2022. Protesters were detained in over 90 countries, while harassment tactics were used to impede the work of activists, journalists and civil society organisations in over 100 countries. Disturbingly, harassment incidents, including the use of travel bans and court summons, have been reported in 60% more countries compared to 2018 levels.

* * *

The global data released today also documents a number of positive developments. 10 countries have been upgraded and the report showcases a range of country case studies where civil society has scored important victories for human rights. Among them, Chile, which has been upgraded to ‘Narrowed’ a second tier rating, where the government has championed policies to protect journalists and has taken steps to redress the repression during the mass protests of 2019.

Lloyd Mayer

Plerhoples: Social Enterprises and Benefit Corporations in the United States

Alicia E. Plerhoples (Georgetown) has written Social Enterprises and Benefit Corporations in the United States, which has been published in The International Handbook of Social Enterprise Law (Springer 2023). Here is the abstract:

The United States is the birthplace of benefit corporations precisely because of American society’s over-reliance on the private sector to solve societal problems. U.S. federal and state regulation continuously fails to provide robust social safety nets or prevent ecological disasters. American society looks to companies to do such work. U.S. social enterprise entities attempt to upend the U.S. legal framework which binds fiduciaries to focus on shareholder value. These entities are permitted, and sometimes required, to consider environmental, social, and governance (“ESG”) impacts of their operations, essentially internalizing ESG costs that would otherwise be paid by American communities and the environment. This chapter traces social enterprise development under U.S. law, starting with a brief discussion of corporate law as a creature of state law. It then provides an overview of the two major types of social enterprise entities in the United States: (1) the Delaware Public Benefit Corporation, and (2) the California Social Purpose Corporation. The chapter briefly discusses other types of U.S. social enterprise entities, including hybrid ventures, worker cooperatives, and the low-profit liability company. The chapter concludes with a discussion of responses to companies’ ESG efforts by legal scholars, asset managers, and the U.S. Securities and Exchange Commission. These responses and the uptake of publicly traded public benefit corporations indicate a seismic shift forward in the use of ESG frameworks in the United States.

Lloyd Mayer

Sidel: The Future of Civil Society Research in China, Hong Kong and Vietnam

Mark Sidel (Wisconsin) has posted The Future of Civil Society Research in China, Hong Kong and Vietnam, which has been published in A Research Agenda for Civil Society (Edward Elgar 2022). Here is the abstract:

I have worked on civil society research, particularly on nonprofit–state relations and philanthropic issues in China and Vietnam for several decades. More recently I have been closely following the situation in Hong Kong after China took draconian steps to control Hong Kong in mid-2020,especially through the enactment and enforcement of the National Security Law applicable to Hong Kong. I have long followed the work of civil society researchers in China, Hong Kong and Vietnam, and collaborated with some of those impressive scholars. And I have long been concerned about the future of research in this important field in those jurisdictions. Let me discuss each of these areas in turn, with a focus on:

• Key ideas, main debates, significant relevant publications and unresolved issues.

• Observations about changes in civil society in over the past years with expectations for the period to come.

• Suggestions about the content of a future civil society research agenda.

Lloyd Mayer

Donor Questions & Fatigue For Contributions to Aid Ukraine

As the Russian invasion of Ukraine passes the one-year mark, donor questions and fatigue have started to become evident. On the questions side, the AP had a recent story titled For donors, wartime Ukraine aid creates blurry ethical line. It highlights the dilemma of some donors, and particularly U.S. nonprofits that face legal restrictions, who want to support Ukraine but do not want to support actual combat activities. This issue is of course complicated by the fact that some items can be used for either humanitarian or fighting purposes.

On the donor fatigue side, devex reported last month that Philanthropic donations to Ukraine have largely dried up. This story notes that over 70 percent of contributions for Ukraine relief were announced before July 2022, with fewer announcements since then, although there have been some notable exceptions. At the same time, the Chronicle of Philanthropy reports that Foundation Giving to Ukraine Peaked at Beginning of Invasion, but Has Stayed Steady Since (subscription required). It notes that Foundation Source found that more than $7 million has been given to support Ukraine by the 273 private foundations it analyzed.

Lloyd Mayer

Xenophobia and Nonprofits

In Italy, "since the expansion of the EU, the most recent wave of migration has been from surrounding European states, particularly Eastern Europe, and increasingly Asia, replacing North Africa as the major immigration area." This, according to ISTAT, Italy's official census bureau.  And also, "Italy was one of the European countries with colonies in Africa during the modern period. Lasting from 1890 to 1941, Italian colonialism in Africa included the present day countries of Libya, Ethiopia, Eritrea, and Somalia. Italian colonialism in Africa came to an end with the death of the Italian leader Benito Mussolini, the collapse of the Fascist regime, and the defeat of Italy in World War II."  Of the 7,461,894 people born elsewhere now living in Italy, less than 10% -- 670,000 -- are clandestini.  And even then, not all of those extra legal immigrants are from North Africa.  The entire immigrant population is less than 9% of Italy's population.  Nevertheless, the fascists in the Italian government are literally drowning extra legal immigrants -- men, women, and children -- from North Africa in the year round choppy waters of Mediterranean Sea.  

Just yesterday, a rickety migrant ship sunk off the coast of Italy with 150 people on board.  If I don't cuss, I might spit.  For a  sober discussion of Italy's immigration policies and how they came to be what they are, read this article.  So far, 43 of the estimated 58 bodies have washed up.  The migrants were from Afghanistan (were NGO activities have been crippled by the Taliban), Iran, Pakistan, and Somalia, among other countries.  Eighty-five people survived.  

The remains of a sunken sailboat washed up on the shores of southern Italy.

Meanwhile, the Prime Minister and the rest of her Mussolini clones are defending their "distant ports" law that took effect just three days earlier, despite warnings that the law would result in many deaths.  That law is aimed at preventing NGO's from rescuing migrants out of the cold choppy waters of the Mediterranean Sea.  As if that will discourage desperate people from Italy's formerly occupied lands, and other places, from risking it all to escape the places from which colonists derived illegal wealth and even bodies.  Italy, ironically, abolished slavery in its African colonies.  But on the very first day the distant ports law went into effect, Italy fined Medecins Sans Frontieres (Doctors Without Borders) and banned its rescue boats from Italian ports for 20 days.  

Hours after the parliamentary vote, the Doctors Without Borders (MSF) charity said its Geo Barents vessel had been blocked for 20 days and the organisation fined 10,000 euros. The sanctions were imposed after MSF was accused of withholding some information about a rescue it completed last week, when the Geo Barents took 48 migrants to the Adriatic port of Ancona, a spokesperson for the charity said.

Rescue personnel collect washed up bodies on a southern Italian beach.

The right wing xenophobic fascist bastards in the government offered the Italian version of "thoughts and prayers" even as bodies were still being collected:"

Italian Prime Minister Giorgia Meloni expressed "deep sorrow" for the deaths. Blaming human traffickers, she vowed to block migrant sea departures to prevent such disasters.  Her right-wing administration has taken a hard line on migration since taking office in October, mostly by restricting the activities of migrant rescue charities with tough new laws that won final parliamentary approval on Thursday. Meloni accuses charities of encouraging migrants to make the dangerous sea journey to Italy, acting as so-called "pull factors". Charities reject this, saying migrants set off regardless of whether rescue boats are in the vicinity. "Stopping, blocking and hindering the work of NGOs (non-governmental organisations) will have only one effect: the death of vulnerable people left without help," Spanish migrant rescue charity Open Arms tweeted in reaction to Sunday's shipwreck.

“Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion. Bad men need nothing more to compass their ends, than that good men should look on and do nothing. He is not a good man who, without a protest, allows wrong to be committed in his name, and with the means which he helps to supply, because he will not trouble himself to use his mind on the subject.”  -- John Stuart Mill, 1867.

darryll jones

Indian Supreme Court Applies "Paradigm Shift" on Commerciality and Unrelated Trade or Business

John and Mark wrote a lot about a "donative" theory of tax exemption, the central thesis of which is that tax exemption should be limited to organizations that demonstrate they are worthy of exemption by generating sufficient public support such that its capital derives from donations. A necessary corollary, of course is that an organization should not be tax exempt if too much of its operating capital derives from sales.   We all pretty much agree that the ideal charity, for which tax exemption is appropriate, is the one to which donate, and which organization, in turn, gives all its resources to appropriate beneficiaries.  Somewhere in their two articles, they admit that ideal has never been the exclusive model for tax exempt organizations and, if I recall correctly, almost all organizations rely to one degree or another on income from sales of the "charitable" product -- tuition admission prices or hospital charges, for example.  The enduring question, of course, is how much fee for service or goods (charitable or not) is too much so that we no longer consider the organization charitable.  That is the difficult question.  I don't remember if John and Mark settled on a definitive answer applicable in all cases but I kinda doubt it.

In India, the Indian Supreme Court, has approved a "paradigm" shift, in effect imposing a donative requirement limiting tax exemption to charitable organizations whose fees for services or goods do not exceed 20% of "total receipts:"  

The paradigm change achieved by Section 2(15) after its amendment in 2008 and as it stands today, is that firstly a GPU charity cannot engage in any activity in the nature of trade, commerce, business or any service in relation to such activities for any consideration (including a statutory fee etc.). This is emphasized in the negative language employed by the main part of Section 2(15). Therefore, the idea of a predominant object among several other objects, is discarded. The prohibition is relieved to a limited extent, by the proviso which carves out the condition by which otherwise prohibited activities can be engaged in by GPU charities.  The conditions are:  

(a) That such activities in the nature of trade, commerce, business or service (in relation to trade, commerce or business for consideration) should be in the course of “actual carrying on” of the GPU object, and

(b) The quantum of receipts from such activities should be exceed 20% of the total receipts.

(c) Both parts of the proviso: (i) and (ii) (to Section 2 (15)) have to be read conjunctively-given the conscious use of “or” connecting the two of them. This means that if a charitable trust carries on any activity in the nature of business, trade or commerce, in the actual course of fulfilling its objectives, the income from such business, should not exceed the limit defined in sub-clause (ii) to the proviso.

In what is apparently the first case applying the paradigm shift, the Indian Supreme Court remanded a case involving an exempt newspaper whose advertising income exceeded 20% of receipts.  If I read the opinion correctly, any amount of unrelated fee for service/goods precludes tax exemption.  Fee for related service/goods may not exceed 20% of all receipts. I gotta think this through.  The Court remanded to the lower tribunal for finding on the "nature of the receipts."  If advertising is unrelated to the charitable mission -- as it generally is here in the U.S. under the "fragmentation rule discussed in American College of Physicians," the newspaper may not accept any amount of advertising revenue.  If it is related, advertising revenue may not exceed 20% of receipts.  Meanwhile if you are interest in Indian law of ta exemption or just comparative law, download both opinions for an interesting discussion.  

 

Click on the picture to get an "Analysis of the Current Legal Framework for Civil Society in India."

 

darryll jones 

FLASH! Governments Don't Trust Nonprofits

Fair use is your friend

Those pesky nonprofit do-gooders are busy doing good, and at the same time trying to avoid geopolitics all over the place.  They shan't get away with it; around the globe government is protecting us in what almost seems a concerted effort.  In Congress, House Foreign Affairs Committee Chair McCaul accused USAID of not doing enough to "investigate credible allegations a nonprofit receiving a $110,000 grant is associated with designated terrorist organizations more than eight months after committee staff raised the issue. USAID took no action to investigate the grant to Helping Hand for Relief and Development (HHRD) even after being provided detailed information on the allegations." He called the failure to investigate "alarming," "grossly negligent," and "unacceptable." 

Just last week, McCaul spoke out against Venezuela's "Draft NGO Law:"

Venezuela’s draft law to regulate non-governmental organizations is the latest attempt by the ruling socialists to stifle dissent and terrorize the opposition. By heavily regulating NGOs and banning political adversaries, the regime will effectively squash one of the few remnants of political opposition in the country. We strongly urge the Biden administration to recognize that the Maduro regime is not a reliable counterpart and its policy of unilaterally easing sanctions undermines efforts to restore Venezuela’s democracy.”

And last week we reported that Alliance for Global Justice's fundraising platform was disconnected after other another nonprofit accused it of accepting donations for foreign terrorist organizations, and at the same time issued warnings to AfGJ's bank that it was violating federal law.  NGO Monitor published a report this month in which it asserts "clear and convincing evidence of links between the Popular Front for the Liberation of Palestine (a group designated as terrorist by several governments) and the European Government-funded NGO Network."

And in Myanmar:

The Organisation Registration Law was introduced by Myanmar’s so-called State Administration Council in October 2022, repealing the former Association Registration Law 2014. It makes registration of NGOs and associations mandatory rather than voluntary, and requires the declaration of funding sources and locations of operation among other information that aid workers deem risky to provide. But being unregistered comes with financial penalties and potential prison time. While it's not unusual for organizations to share information about their activities, this law threatens the need for organizations to protect those they support and their personal data, said a Myanmar-based aid worker who asked to remain anonymous for security purposes. There must be no consequences for having received humanitarian assistance, they added. The law forbids the provision of aid to areas not controlled by the council and those who oppose the junta, which forcibly seized power of the country in a coup in 2021. 

The junta is trying to ensure no money moves from NGOs to resistance fighters, according to a report by the International Crisis Group. A local advocacy worker who also requested anonymity said it’s also about preventing human rights groups from reporting the military’s violations, and believes registering with the junta will only give the regime legitimacy.

Meanwhile, in Vietnam:

• A wave of recent closures of environment organizations in Vietnam, as well as the arrests of NGO leaders, reflects the difficult position that activists face in the one-party state.
• Nonprofit organizations have an unclear legal status in the country, and are vulnerable to pressure from the state as well as from powerful private interests.
• Though the communist-led government has at times recognized the value of NGOs as partners in implementing social and environmental programs, it has also attacked the concept of civil society as a threat to official ideology and morality.

Later on in Zimbabwe

Jeers filled the air when lawmakers of the ruling ZANU-PF party celebrated after the Private Voluntary Organizations Amendment Bill, which regulates non-governmental organizations, passed in Zimbabwe’s Senate late Wednesday. The legislation, which still awaits President Emmerson Mnangagwa's signature, makes it a criminal offense for NGOs to support or oppose political parties or candidates in any election. Supporters say the legislation is designed to curb financing for terrorism and money laundering in Zimbabwe. Ziyambi Ziyambi, Zimbabwe’s justice minister, told Parliament after the bill passed that law-abiding NGOs have nothing to fear. “All we are saying is: if you come and you say you want to assist – in quotes – water sanitation, you have not any business in getting into political lobbying,” he said. “So, we are saying: we want to follow the money where it is going. So, we believe that this is a progressive piece of legislation.”

Musa Kika, a human rights lawyer who heads the Zimbabwe Human Rights NGO Forum, said the law infringes on Zimbabweans’ basic rights. “Our position is this law is unconstitutional,” he said. “It violates freedom of association. It violates citizens’ rights to organize and self-organize in spaces outside the state. So that’s our position that this law cannot and will not stand constitutional scrutiny by an independent and any competent court.”

And finally, in Italy, where the Ghost of Mussolini roams and fascism is on the rise, Amnesty International is condemning new legislation implementing a "distant port" requirement with ever greater impunity:

In the central Mediterranean, over 2 thousand people lost their lives in 2022 while engaging in irregular sea crossings to seek international protection or better lives in Europe. In December 2022, the Italian government adopted two measures affecting NGO ships that patrol the central Mediterranean and rescue people in distress at sea. The first is a new “distant ports” practice, that requires NGO ships carrying refugees and migrants rescued at sea to have people disembark in ports in central and northern Italy, including in the Adriatic Sea – i.e. in ports particularly distant from the position where rescues are typically carried out. The second is a new decree-law introducing a number of additional requirements for NGO rescue vessels. In combination, these measures significantly reduce the capacity of NGO rescue ships to patrol the areas of the central Mediterranean where shipwrecks are more likely to occur. Amnesty International calls on the Italian authorities to end such measures as a matter of urgency.

I don't like marinara sauce with my fascism.  I like good ol' fashioned American fascism.  That's why I live in Florida.  

darryll jones

Taliban Exclusion of Women from NGOs and Universities Costing Afghanistan $7 Billion (and Counting)

Click on the picture for a background report.

We have been following the situation in Afghanistan involving the Taliban's order barring women from university and charitable organizations.  We reported, for example, that the State Department imposed increased sanctions on the Taliban after the Taliban summarily banished women from going to university or working with NGOs.  When the Afghan government collapsed shortly the U.S. withdrew troops, the Biden administration froze the government's bank accounts.  Afghanistan is losing about $140,000 every single day just in interest on the frozen capital, assuming an approximate 5% rate.  This in a country with GDP per capita of less than $400.

An interesting WSJ Podcast quantifies the financial costs and how those costs are impacting the Afghan people.  Here is a partial transcript:  

Annmarie Fertoli: When the US left Afghanistan in 2021 and the Taliban took over, the Biden administration made a bold move. It froze $7 billion that the Afghan Central Bank had kept in reserves in the US. The White House put much of that money in an account in Switzerland. The so-called Afghan Fund was pitched as a way of helping the Afghan people, but so far no funds have been released. Instead, the money has frozen as the US bumps up against the limits of its power to sway the Taliban. I'm Annmarie Fertoli from the Wall Street Journal, and joining me now is our DC reporter, Daniella Cheslow. Hi Daniella, thanks for being here.

Daniella Cheslow: Yeah, the picture of Afghanistan's economy is pretty bleak. The World Bank estimates the economy contracted by about 30% between 2021 and 2022. The UN says malnutrition reached a record high. This is partly because of economic factors, and that includes the international community cutting off a lot of aid since the Taliban took over. There's also been a drought and flooding that impacted crops. The Afghan Fund wouldn't directly help out in humanitarian aid. That's not its role, but it could help keep inflation stable. Over the summer, Afghanistan's year on year inflation reached above 18%, which is really making it harder for people to afford food and other basic goods. It's come down somewhat since then, but it's still high. There was some fear for a while in Afghanistan that the country's economy would completely collapse. What has been keeping it somewhat stable is a pipeline of cash that the United Nations flies in. The World Bank has said that if that were to dry up, it would seriously set back what it called Afghanistan's anemic recovery.

Annmarie Fertoli: The Afghan Fund is just one part of the picture here. I wonder what you heard from other groups that are trying to help the people of Afghanistan without propping up the Taliban?

Daniella Cheslow: Yeah, that question is on people's minds in DC. The US has found ways to aid people in countries it's sanctioned like North Korea. But I think that Taliban poses a unique problem. It has banned women from working in NGOs that came out in December. Many organizations that worked in Afghanistan suspended or cut back their operations because they said they couldn't reach their targets. The result is a moral dilemma, which is what I heard from Ibraheem Bahiss at the International Crisis Group, which still has a presence in Afghanistan.

Ibraheem Bahiss: Do we want Afghans to suffer at the cost of hoping that it would change the Taliban's behavior or at least keep the Taliban tied down? Or do we want to address the crisis that the Afghan population is grappling with, even if the Taliban will benefit from the improved humanitarian situation and economic situation in the country?

Unfreeze Afghanistan is a "coalition of US and Afghan women" that want Taliban to respect the human rights of women and the United States to unfreeze the money.  

darryll jones

Turkey, Syria, and Disaster Relief

By now, you've undoubtedly read about the earthquakes in Turkey that killed at least 5,100 people in Turkey and Syria and left an estimated 150,000 people without homes in Turkey alone. 

Governments, including several countries in the EU, the United States, Russia, and Israel, are stepping up with disaster relief. But for an earthquake that has affected an estimated 23 million people, there cannot be too much help.

And charitable organizations are stepping up, allowing individuals and corporate entities to step up. The Turkish and Syrian Red Crescents are looking for donations and volunteers. The International Blue Crescent Relief and Development Foundation says it needs tents, heaters, blankets, MREs, thermal clothes, and first aid kits. Plenty of other charitable organizations are also raising funds to provide relief for the victims of the earthquakes.

And this fundraising strikes me as absolutely critical. With a massive disaster like this, we need the government, the private, and the public sector to step up. A couple things to think about when deciding how and where to help:

Continue reading

United States Imposes Additional Sanctions on Taliban For Barring Women from Universities and NGOs

A Press Statement issued yesterday by Secretary of State Antony Blinken:  

I am taking action today to impose additional visa restrictions on certain current or former Taliban members, members of non-state security groups, and other individuals believed to be responsible for, or complicit in, repressing women and girls in Afghanistan through restrictive policies and violence, including the Taliban’s decision to ban women from universities and from working with NGOs.  The immediate family members of such persons may also be subject to these visa restrictions, enacted under Section 212(a)(3)(C) (“3C”) of the Immigration and Nationality Act.

The Taliban’s most recent edicts ban women from universities and from working with NGOs, and further the Taliban’s previous measures that closed secondary schools to girls and limit the ability of women and girls to participate in the Afghan society and economy.  Through these decisions, the Taliban have again shown their disregard for the welfare of the Afghan people.

So far, the Taliban’s actions have forced over one million school-aged Afghan girls and young women out of the classroom, with more women out of universities and countless Afghan women out of the workforce. These numbers will only grow as time goes on, worsening the country’s already dire economic and humanitarian crises.  Women’s and girls’ quality, safe, and inclusive education and workforce participation is essential to growing and strengthening economies, reducing inequality, and fostering stability.  Equal access to education and work is also an essential component to the vitality and resiliency of entire populations, including all adults and children, regardless of gender. The Taliban cannot expect the respect and support of the international community until they respect the human rights and fundamental freedoms of all Afghans, including women and girls.

We continue to coordinate closely with allies and partners around the world on an approach that makes clear to the Taliban that their actions will carry significant costs and close the path to improved relations with the international community.

We condemn in the strongest of terms the Taliban’s actions. The United States stands with the Afghan people and remains committed to doing all we can to promote and advance respect for the human rights and fundamental freedoms of all Afghans, including women and girls.

For previous coverage, see this post.

 

darryll jones

Tax-Exempt Status and Associated Factors among Charitable Foundations in China

 

When I was a much younger and hungrier professor, I wrote an article about tax exempt organizations in China.  My pre- or recently tenured self was feeling especially erudite so I christened the article with a ridiculously pompous title, appropriate to my membership in a learned society I guess.  Sheeesh!  Click on the link if you want to know the title, I am too embarrassed now to include it in bright light hyperlink. I was scheduled to present the pre-publication paper to an audience in Beijing in October 2001, but then 9/11 happened and the whole world changed in an instant.

 

Even in 2003, when I wrote the article, access to information -- especially from China or other authoritative states -- was difficult (at least for me).  One thing is true, though.  Information proliferates exponentially every day.  Even North Korea won't be able to withstand the progress of online yakety-yak.  Nowadays, Chinese nonprofit laws can be accessed with just a click of a mouse.  I wish I had access to the article whose title is in the headline back then.  It provides a nice summary of Chinese nonprofit law, some useful empirical data and supported conclusions.  The world is truly getting smaller.  Here is the Introduction to Tax-Exempt Status and Associated Factors among Charitable Foundations in China.

 

dkj

 

Continue reading