Nonprofit Law Prof Blog

New Paper: Information Acquisition, Inventory Levels, and Tax Incentives for Charitable Giving

A new paper entitled Information Acquisition, Inventory Levels, and Tax Incentives for Charitable Giving by Anil Arya, Tyler Atanasov, Brian Mittendorf, and Dae Hee Yoon looks at benefits enhanced inventory charitable giving incentives provides to firms. Bottom line: enhanced deductions for donating inventory ensure corporate giving is about much more than publicity and can help facilitate more economic efficiency, for consumers & charities alike.

The Abstract reads as follows: "Many of America’s top corporate donors share a common feature: the bulk of their giving is in the form of in-kind products, not cash. This phenomenon is not a coincidence but rather a result of the tax code creating such a preference due to an “enhanced” deduction for inventory donations. In this paper, we utilize a parsimonious model of inventory choice under uncertainty to demonstrate that enhanced tax deductions not only promote giving, they also promote better learning of consumer demand for products in the retail market. An inventory stockout curtails a firm’s learning of precise consumer demand since the firm’s sales volume only reveals that the underlying consumer demand exceeded the inventory level. Tax incentives for donations of excess inventory encourage a firm to boost its inventory stocks which, in turn, boosts the firm’s learning of consumer preferences. Accounting for this informational role of tax incentives, the paper derives charitable giving patterns, socially-beneficial tax policy, and firms’ information acquisition choices."

Philip Hackney

Adediran: Disclosures for Equity

Atinuke O. Adediran (Fordham) has posted Disclosures for Equity on SSRN (122 Columbia Law Review forthcoming 2022): Here is the abstract:

While one might expect that the nonprofit sector is an equitable space where generosity and social justice are the norms, the sector suffers from funding inequalities. Despite corporations’ and private foundations’ pledges to fund nonprofit organizations that are led by members of, or that serve, communities of color, there are racial disparities in nonprofit funding. Research reveals that in comparison to White-led nonprofit organizations, organizations led by or serving communities of color are chronically underfunded. These disparities in funding mean that organizations that serve communities of color are more likely to go defunct or lack resources. Increased funding for minority-led or serving organizations can have a profound positive impact on the criminal justice system, healthcare, environmental justice, housing, labor, and employment. Indeed, it would be difficult to fight mass incarceration without the work of nonprofit charities like Bryan Stevenson’s preeminent organization, Equal Justice Initiative.

This Article proposes two novel remedies to address this issue. The first is for charities to publicly disclose their institutional donors in Schedule B of Internal Revenue Service (“IRS”) Form 990. The second is for IRS Form 990 to include information on the race and ethnicity of top managers, directors, and the communities an organization serves. Mandating these disclosures would allow the public to assess whether pledges to support racial justice come with funding rather than empty promises. While the Supreme Court’s recent case, Americans for Prosperity Foundation v. Bonta (“AFPF”) struck down California’s donor disclosure requirements, this Article makes an important distinction between individual and institutional donors that the AFPF case ignores. As the disclosures would only apply to institutional donors and would include an opt out provision for controversial organizations, they would protect the right to freedom of association while promoting transparency in nonprofit funding and racial justice. By using mandatory disclosures to address racial inequities in not-for-profit law, the nonprofit sector might finally contend with persistent racial disparities in funding that leave communities of color underserved.

The article is particularly timely given a recent Washington Post analysis (Corporate America's $50 billion promise) that raises questions about corporate support for efforts to address racial inequality, noting that "more than 90 percent of that amount — $45.2 billion — is allocated as loans or investments they could stand to profit from, more than half in the form of mortgages" and that only about $70 million "went to organizations focused specifically on criminal justice reform."

Lloyd Mayer

Avci, Schipani, Seyhun & Verstein: Insider Giving

Sureyya Burcu Avci (Sabanci University), Cindy A. Schipani (University of Michigan), H. Nejat Seyhun (University of Michigan), and Andrew Verstein (UCLA) have posted Insider Giving on SSRN (71 Duke Law Journal forthcoming 2021). Here is hte abstract:

Corporate insiders can avoid losses if they dispose of their stock while in possession of material, non-public information. One means of disposal, selling the stock, is illegal and subject to prompt mandatory reporting. A second strategy is almost as effective and it faces lax reporting requirements and enforcement. That second method is to donate the stock to a charity and take a charitable tax deduction at the inflated stock price. “Insider giving” is a potent substitute for insider trading. We show that insider giving is far more widespread than previously believed. In particular, we show that it is not limited to officers and directors. Large investors appear to regularly receive material non-public information and use it to avoid losses. Using a vast dataset of essentially all transactions in public company stock since 1986, we find consistent and economically significant evidence that these shareholders’ impeccable timing likely reflects information leakage. We also document substantial evidence of backdating – investors falsifying the date of their gift to capture a larger tax break. We show why lax reporting and enforcement encourage insider giving, explain why insider giving represents a policy failure, and highlight the theoretical implications of these findings to broader corporate, securities, and tax debates.

Lloyd Mayer

Global Policy Special Issue: Restricting NGOs: From Pushback to Accommodation

Global Policy has published a special issue focusing on government restrictions on civil society groups. Here is the description and table of contents:

Since the mid-2000s, scholars, policy makers, and activists have been sounding alarm bells over the growing tendency of governments around the globe to restrict the ability of civil society groups to form, operate, advocate for particular causes, receive and use resources, and network with other actors. The contributions in this special issue examine how particular types of civil society organizations are impacted by this clampdown, how restrictions can change the balance between civil society actors with rival ideological perspectives, how restrictions can enable the rise of new civil society actors attacking existing CSOs, and how restrictions can shape popular attitudes and donor funds. Importantly, the contributions in this issue also shed light on how organizations attempt to push back against restrictive states.

Special Issue Article: Introduction

Restricting NGOs: From Pushback to Accommodation - Kendra Dupuy, Luc Fransen and Aseem Prakash

Special Issue Articles

Tempering Transnational Advocacy? The Effect of Repression and Regulatory Restriction on Transnational NGO Collaborations - Luc Fransen, Kendra Dupuy, Marja Hinfelaar, Sultan Mohammed and Zakaria Mazumder

The Selective Closure of Civic Space - Conny Roggeband and Andrea Krizsán

The Enemy Within? Anti-Rights Groups and Restrictions on Civil Society - Ines M. Pousadela and Dominic R. Perera

Who Cares about Crackdowns? Exploring the Role of Trust in Individual Philanthropy - Suparna Chaudhry, Marc Dotson and Andrew Heiss

The Implications of Closing Civic Space for Hunger and Poverty in the Global South - Naomi Hossain and Marjoke Oosterom

A Platform or Partner: Engaging the Media in Advocacy - Lisa-Marie Selvik

Defending Civic Space: Successful Resistance Against NGO Laws in Kenya and Kyrgyzstan - Nora Berger-Kern, Fabian Hetz, Rebecca Wagner and Jonas Wolff

Don’t Touch My Constitution! Civil Society Resistance to Democratic Backsliding in Africa´s Pluralist Regimes - Lise Rakner

Refraining or Resisting: Responses of Green Movement Supporters to Repression During the 2013 Iranian Presidential Elections - Ali Honari and Jasper Muis

Lloyd Mayer

Cryptocurrency and Nonprofits

Peter Howson (Northumbria University, UK) has published Crypto-giving and surveillance philanthropy: Exploring the trade-offs in blockchain innovation for nonprofits in Nonprofit Management and Leadership. Here is the abstract:

A blockchain is a smart electronic database, distributed to all users, immutably tracking every transaction that has ever taken place between nodes on a network. The technology is being used by some nonprofits to address various operational challenges, including attaching automated conditions to charitable donations facilitated by programmable “crypto-giving” platforms. Drawing from analysis of technical documents provided by active crypto-giving projects, this review considers how these platforms enable radical shifts in sectoral power relations through “surveillance philanthropy”. This algorithmic surveillance ensures project funding fully reflects the interests of donors, while potentially restricting nonprofits in meeting the dynamic and complex needs of project beneficiaries. The paper considers the benefit trade-offs from crypto-giving platforms in three areas of utilization: (a) new forms of donor engagement and fundraising, (b) new tools for organizational governance, and (c) novel provision of development assistance. Despite the possible efficiency and transparency benefits of crypto-giving platforms, more research and practitioner engagement is required to ensure the sector's funding is secure and sustainable, without entailing significant risks for proposed beneficiaries.

For additional coverage of cryptocurrency and nonprofit issues, see Philip Hackney & Brian Mittendorf, Charities are taking digital money — but there are risks (Salon), Crypto, Meet Donor-Advised Funds: a New Way of Giving (The Chronicle of Philanthropy), Nonprofits Get a New Type of Donation: Cryptocurrency (N.Y. Times).  

Lloyd Mayer

Huber, Pittavino & Peter, Tax Incentives for Charitable Giving: Evidence from the Canton of Geneva

Giedre Lideikyte Huber, Marta Pittavino, and Henry Peter (all from the University of Geneva) have posted Tax Incentives for Charitable Giving: Evidence from the Canton of Geneva on SSRN (to be published in the Routledge Handbook of Taxation and Philanthropy). Here is the abstract:

This contribution presents the legal framework of income tax incentives for charitable giving in Switzerland and describes the reform putting this system in place in 2006. Using a unique data set shared by the Tax Administration of the Canton of Geneva for this purpose, we provide descriptive statistics about taxpayers’ charitable giving behaviour in Geneva from 2001 to 2011. In this period, the number of taxpayers deducting charitable contributions significantly increased. In contrast, the size of individual annual deductions (both mean and median) decreases. The data show that the amount of tax deductions for charitable giving sharply increases relative to income class, and the median charitable deduction by taxpayer rises exponentially with income (i.e. years 2001 and 2011). Currently, no clear effects of the 2006 tax reform are visible; however, more in-depth studies are needed in this respect.

Lloyd Mayer

First Effects of the AFPF Donor Disclosure Decision and Additional Analysis

UPDATE: A reader commented that 1st Circuit has cited but distinguished the AFPF decision in rejecting a constitutional challenge to certain Rhode Island disclosure and disclaimer laws applicable to election-related communications, possibly setting the stage for the Supreme Court to consider the AFPF decision's applicable to campaign finance disclosure laws. See Gaspee Project v. Mederos (1st Circ. Sept., 14, 2021). In contrast, a federal district court in Colorado has relied in part on the AFPF decision in enjoining a municipal independent expenditures disclosure law. See Lakewood Citizens Watchdog Group v. City of Lakewood (D. Colo. Sept. 7, 2021).  And finally, the Hawaii Attorney General has posted the following notice on its Tax & Charities website: "Effective immediately, the State of Hawaii Department of the Attorney General’s Tax & Charities Division will no longer require the filing of Schedule B to the IRS Form 990 as part of the registration and annual reporting requirements."

 

The first effects of the Supreme Court's decision in Americans for Prosperity Foundation v. Bonta are now being felt, although it will take years for the full effects of this landmark donor disclosure case to be realized. 

Not surprisingly, California quickly posted the following notice on its Charities webpage in recognition of its loss:

Effective July 1, 2021, the Registry of Charitable Trusts will no longer require the filing of Schedule B to the IRS Form 990 as part of the registration and annual reporting requirements.

New Jersey, which has a filing requirement similar to California's, announced it would not be enforcing its requirement on its Charities Registration Section webpage, saying:

In light of the United States Supreme Court’s recent decision in Americans for Prosperity v. Bonta, the Division's Charities Registration Section has determined that the requirement that charities submit the Internal Revenue Service (IRS) Form 990 Schedule B upfront as part of their initial and yearly registrations can no longer be enforced. The Division will therefore be revising its rules, and in the interim will not be taking enforcement action based on the failure to include Schedule B or an equivalent donor schedule in such registrations. The Division will deem any entities that were previously deemed non-compliant solely because they failed to submit Schedule B or an equivalent donor schedule to be in compliance with registration requirements. All other regulations at N.J.A.C. 13:48-1.1 et seq. remain in effect and the Division continues to require the submission of all other schedules and statements.

And as already noted in this space, New York has also suspended collection of that schedule pending review of the decision. Both New York and New Jersey faced legal challenges from the Liberty Justice Center to their collection of the schedule, which may have pushed them to get these notices out quickly. No word yet on whether Hawaii, which is the other state with a similar requirement, will follow their lead. (Ballotpedia also identifies Kentucky as having such a requirement, but filings in the AFPF litigation indicate this is not accurate.) Coverage: The NonProfit Times.

For recent, in-depth analysis of the possible further effects of the decision, see Americans for Prosperity Foundation v. Bonta: Questions and Answers, written by Professor Bradley A. Smith (Capital University) for the Institute for Free Speech. One interesting aspect of his analysis is his take on the possible effect on the federal tax law donor disclosure requirement (operationalized through Schedule B) (footnotes omitted):

Does This Mean Nonprofits No Longer Have to File Schedule B With the IRS?

No. In 2020, the IRS repealed the requirement that donor names and addresses be reported on Schedule B for most nonprofits, but not for those operating under Sections 501(c)(3) or 527 of the Internal Revenue Code. The AFPF majority specifically noted that, “revenue collection efforts and conferral of tax-exempt status may raise issues not presented by California’s disclosure requirement.”

It is hard to say how the courts would respond to a challenge to the IRS’s Schedule B filing requirement. Such a challenge would now be analyzed under the AFPF framework, meaning the IRS would have to show an important need for the information and that the demand was narrowly tailored. However, as 501(c)(3) donors claim a tax deduction, the IRS would likely argue that the information is needed to ensure tax compliance – i.e., that the donations claimed by individual filers are actually received by charities. Given the potential revenue consequences, and a more direct connection between the information sought and the potential fraud than existed under California’s policy, courts might still uphold the rule, as the majority appears to suggest.

As often happens with Supreme Court decisions announcing new or clarified standards of review, how lower courts interpret the case going forward will be almost as important as the case itself.

Lloyd Mayer

More Recent Articles of Interest

A couple more recent papers of note in the nonprofit sphere:

Andrew Hayashi & Justin Hopkins

The Charitable Tax Deduction and Civic Engagement

In an era characterized by inequalities of income and influence, political polarization, and the segregation of social spaces, the income tax deduction for charitable contributions would appear to abet some of our worst social ills because it allows wealthy individuals to steer public funds to their preferred charities. But we argue that now is the time to expand and refocus—not abolish—the tax subsidy for charitable giving. Previous assessments of the charitable deduction have focused on how it helps charities but ignored an essential benefit of giving: its effect on the donor. We show that the charitable deduction increases volunteerism along with financial giving, and we report new evidence that volunteerism is associated with broader civic and political engagement, including engagement with people of different cultures, races, and ethnicities. Since people tend to undervalue the social and relational goods that flow from civic participation, the charitable deduction is a helpful corrective. We also report evidence that civic engagement is unequally distributed and propose a new refundable tax credit that turns low- and middleincome households from clients of charities to donors, which can both empower them and help remedy inequalities in civic and political participation.

Daniel Figueroa

Economic Opportunity & Resilience: Opportunity Zones & Equity

The Tax Cuts and Jobs Act provided the most comprehensive update to the tax code in two decades. Born of it was the federal opportunity zone legislation that facilitates economic development in historically distressed areas by offering tax incentives. But does this “catalyst of economic growth” provide the needed relief and opportunity to the communities which it’s aimed to serve? This piece is an analysis of opportunity zones—the good, the bad, and the yet to be defined and their effect on actually curbing (or accelerating) gentrification. By considering the TCJA in general, this work evaluates stipulations regarding “Opportunity Zones,” and the concept of geographically-targeted tax policy. First, an analogization of supply-side tax policy and place-based incentivization programs; following the analysis of supply-side economics and its influence on a rising inequality; and a two-fold assessment of the factors most germane to this analysis: a historical overview of the ideological, legislative, and social factors most pivotal to the passage of TCJA, reforms are shown to have culminated not only in sky-high levels of wealth and income inequality in the U.S., but also an increasing distance and isolation between the wealthy ‘investor class’ targeted by ‘Opportunity Zone’ legislation, and the economically-distressed communities which such tax-based legislative incentives were designed to bring relief. Notably, this work will consider the impact of such legislation upon poor areas, both in terms of the apparent impact it has had upon local development and with respect to the phenomenon known as gentrification. After examining the shortfalls of the legislation, this paper offers recommendations on a robust, comprehensive response toward equitable growth for the communities intended to be served.

Philip Hackney

 

Recent Articles of Interest

Here are a few recent articles or writings of interest to the nonprofit world.

Ellen Aprill, Americans for Prosperity and the Future of Schedule B,  Letter to the Editor in Tax Notes

"Before the July 1 decision of the Supreme Court in Americans for Prosperity,¹ the California Attorney General had for a number of years required all section 501(c)(3) organizations operating in the state to file with it a full copy of its federal Form 990, the annual information return for exempt organizations. The required filing included an unredacted Schedule B, listing the donations, with names and addresses, of substantial contributors. The Supreme Court held California’s requirement to be facially unconstitutional. The Court determined that the California requirement failed an exacting scrutiny standard of review under which, to avoid violating the First Amendment, any compelled disclosure to government must be “narrowly tailored” to an asserted and substantial government interest. The Court concluded that California’s asserted need for an unredacted Schedule B in order to investigate fraud did not meet this standard."

Jennifer Bird-Pollan, Taxing the Ivory Tower, Pepperdine Law Review

The Tax Cuts and Jobs Act of 2017 introduced the first ever excise tax imposed on the investment income of university endowments. While it is a relatively small tax, this new law is a first step towards the exploration of taxing non-profit entities on the vast sums of wealth they hold in their endowments. In this Essay I take the new tax as a starting place for investigating the justification for tax exemption for universities and thinking through the consequences of changing our approach, both in the form of the new excise tax and possible alternatives. There remain reasons to be skeptical both about the design of the current tax and its ability to withstand the political efforts of the powerful set of universities who will be subject to it. Nonetheless, this new tax opens the door to a discussion of whether it is time to treat universities’ endowments more like the private equity funds they increasingly resemble.

Beckett Cantley, Ground Zero: The IRS Attack on Syndicated Conservation Easements, William & Mary Law & Policy Review

On June 25, 2020, the Internal Revenue Service (“IRS”) announced a settlement initiative (“SI”) to certain taxpayers with pending docketed cases involving syndicated conservation easement (“SCE”) transactions. The SI is the current culmination of a long series of attacks by the IRS against SCE transactions. The IRS has recently found success in the Tax Court against SCEs, but the agency’s overall legal position may be over- stated. It is possible that the recent SI is merely an attempt to capitalize on leverage while the IRS has it. Regardless, the current state of the law surrounding SCEs is murky at best. Whether a taxpayer is contemplating the settlement offer, is currently involved in an unaudited SCE trans- action, or is considering involvement in an SCE transaction in the future, the road ahead is foggy and potentially treacherous.

This Article attempts to shed light on the obstacles that face SCE transactions. This Article: (1) provides an overview of SCE transactions and the main attacks against them; (2) analyzes each of the IRS’s main attacks and the relevant issues that arise; (3) illustrates the relevant pro-taxpayer and anti-taxpayer cases on each issue; (4) discusses the subsequent considerations that taxpayers need to take into account and the future outlook of SCE; and (5) concludes with a summary of the Article’s findings.

J. Haskell Murray, The History and Hope of Social Enterprise Forms, Tennessee Journal of Business Law

This Article sketches the history of social enterprise legal forms in the United States and provides suggestions regarding their continued evolution. Social enterprises—companies that blend profit and social purpose—have a long history in the United States, but not until 2008 did a state pass a social enterprise specific statute. In that year, Vermont passed a statute allowing for formation of L3Cs, low-profit limited liability companies. The L3C was aimed primarily at funding issues for social enterprises and attempted to unlock program related investments (PRIs) for that purpose. Following the L3C form were a number of variations on a corporation-based social enterprise: social purpose corporations, benefit corporations, and public benefit corporations. These forms evolved over the past decade to address the issues of corporate purpose and social accountability. Lastly, a small handful of states passed benefit limited liability company (BLLC) statutes for companies that desired a form similar to the benefit corporation but built on an LLC framework.

 

Philip Hackney

 

Hackney, Dark Money Darker? IRS Shutters Collection of Donor Data

Philip Hackney (Pittsburgh) has posted Dark Money Darker? IRS Shutters Collection of Donor Data, which will be published in the Florida Tax Review. Here is the abstract: 

The IRS ended a long-time practice of requiring most nonprofits to disclose substantial donor names and addresses on the nonprofit annual tax return. It is largely seen as a battle over campaign finance rather than tax enforcement. Two of the nonprofits involved, social welfare organizations and business leagues, are referred to as “dark money” organizations because they allow individuals to influence elections while maintaining donor anonymity. Many in the campaign finance community are concerned that this change means wealthy donors can avoid campaign finance laws and have no reason to fear being discovered. In this Article, I focus on whether the information is needed for the enforcement of the tax law and/or to support ancillary legal goals. I contend the IRS ought to collect this substantial donor information as it did for over 79 years. Though the collection of donor information may not be essential for groups such as social clubs, fraternities and sororities, and mutual ditch companies, the collection of this information non-publicly by the IRS is important in both enforcing tax-exempt requirements and in enforcing the tax law generally. Tax law prohibits the distribution of earnings from a nonprofit to those who control the organization. Substantial donors are classic suspects for seeking such improper receipts through their control. Thus, the information is key to IRS auditors. Considering the deficient budget of the IRS to ensure a properly enforced Code, the failure to collect that information puts the IRS in a disadvantaged position. While as a democratic matter, there may be some modest benefit from alleviating donors from the worry that the government will know about their political contributions, the harm to those who are not able to make use of these structures, the harm to those who are deprived of information regarding the biases associated with particular political activity, and the harm to the belief that the tax, campaign finance, and nonprofit law will be enforced equally upon all, is more significant. With these considerations in mind, the IRS and Treasury ought to rescind its most recent guidance on this matter. If not, Congress ought to require this information be disclosed by law.

Samuel D. Brunson

Amarante, States as Laboratories for Charitable Compliance: An Empirical Study

Eric Franklin Amarante (Tennessee) has posted States as Laboratories for Charitable Compliance: An Empirical Study, which will be published in the George Washington Law Review. Here is the abstract:

Each year, the IRS awards 501(c)(3) status to thousands of unworthy organizations. As a result, these undeserving organizations do not have to pay federal taxes and donations to these entities are tax-deductible. This is because the IRS, facing increasingly severe budget cuts, adopted a woefully inadequate application process that fails to identify even the most obvious of unworthy applicants. The result of this regulatory failure may prove to be catastrophic. As unworthy charities proliferate, the public will lose faith in the entire charitable regime. As trust dissipates, donations are certain to follow, and the charitable sector will lose a vital revenue stream. It is not an exaggeration to say that the loss of donations represents an existential threat to the entire charitable sector.

With a change in budgetary priorities unlikely in the foreseeable future, it would be unwise to wait for the IRS to curb this threat. Rather, it would be prudent to identify another way to increase regulatory compliance in the charitable sector. This article proposes a cost-efficient mechanism for states to fill the regulatory void left by the IRS. To identify this mechanism, this study reviewed 500 formation documents in five different states, identifying the state procedures that resulted in the highest level of regulatory compliance. By replicating the procedures identified in this article, individual states will not only ensure higher levels of regulatory compliance, but also help restore the public’s trust in the charitable sector.

Lloyd Mayer

Babenko, Bennett, Sen: Regulating CEO Pay: Evidence from the Nonprofit Revitalization Act

Ilona Babenko (Arizona State), Benjamin Bennett (Tulane), and Rik Sen (University of New South Wales) have posted Regulating CEO Pay: Evidence from the Nonprofit Revitalization Act. Here is the abstract:

Using compensation data for 14,765 nonprofit organizations during 2009-2017, we find that CEO pay dropped by 2-3% when new legislation adopted in New York reduced the ability of CEOs to influence their own pay. Despite cuts in pay, CEOs did not exert less effort. Further, nonprofit performance improved after the legislation, as reflected in larger donor contributions, more volunteers, and greater revenues. We show that these results are consistent with the predictions of a simple principal-agent model with compensation rigging. Overall, our results suggest that regulation that targets the pay-setting process can be effective at improving organizational outcomes at nonprofits.

Lloyd Mayer

Jay, Down the Rabbit Hole with the IRS' Challenge to Perpetual Conservation Easements, Part Two

Jessica Jay (Conservation Law, P.C.) has published Down the Rabbit Hole with the IRS' Challenge to Perpetual Conservation Easements, Part Two in the Environmental Law Reporter. Here is the abstract:

When the Internal Revenue Service began disallowing gifts of perpetual conservation easements for claimed failures of perpetuity requirements, it tumbled land trusts, landowners, and the U.S. Tax Court down the rabbit hole to a baffling land below. The Service’s drop into matters beyond valuation and into elements intended and necessary for easement durability and flexibility has caused a confusing array of Tax Court decisions.

Part One of this Article examined how the Service lures the land conservation community and the Tax Court into Wonderland distortions, and the precarious tower of cards upon which its legal theories rest. Part Two, here, identifies the fundamental elements of law and the process of law to topple the Service’s card construct, and awaken and return everyone to the world above ground.

Lloyd Mayer

Nwaeze, Public Benefit Corporations: There's No Public Benefit to Breaching Fiduciary Duties

Oderah C. Nwaeze (Faegre Drinker) has published Public Benefit Corporations: There's No Public Benefit to Breaching Fiduciary Duties in the Emory Corporate Governance and Accountability Review. Here is the abstract:

During the spring and summer of 2020, in the midst of the COVID-19 pandemic, the United States witnessed large, public protests and activism reminiscent of the 1950s and 60s. Following the death of George Floyd, a Black man, at the hands of Minneapolis police, the American public once again mobilized to fight the ills and inequities of racism and discrimination. A significant number of nonprofit organizations and government departments have been created to resolve the social and political issues that plague Americans. Even Corporate America has been called to act, given that seventy percent of consumers are interested in the social justice efforts taken by the corporations they patronize. By the third quarter of 2020, plenty of companies answered the call. For example, Bank of America and PNC Bank each have committed $1 billion to address economic and racial inequality. Google’s parent Alphabet pledged $12 million to further racial equality. Target Corp. has committed $10 million to civil rights organizations and 10,000 hours of consulting services to small businesses owned by people of color. Comcast Corp. also announced that it will allocate $75 million to organizations including the National Urban League, the Equal Justice Initiative, and the NAACP, along with $25 million in media over the next three years. Recognizing that corporate activism could be inconsistent with the duty of directors and officers to secure and retain value for the company, some commentators have suggested that corporations committed to activism should create or convert to a Public Benefit Corporation (“PBC”). While the core trait of a PBC is that it must pursue public benefit, that charge is not superior to directors’ and officers’ responsibility to generate and preserve value for the company’s stockholders. Thus, while PBCs provide legal cover for corporate activism, corporate management must weigh that interest against the obligation to satisfy traditional fiduciary duties of due care and loyalty, as well as the obligation to avoid waste. This balance is not difficult to strike; it simply requires that directors and officers carefully evaluate the anticipated conduct to ensure the action considered appears likely to provide corporate benefit, reasonable for the resources expended. As part of that due diligence process, directors and officers also must make certain any transaction that benefits a director or officer is entirely fair to the corporation. Furthermore, directors and officers must ensure that the resources committed to a social cause are reasonable given the company’s size and value, as well as the benefits of the philanthropy.

Lloyd Mayer

Papa, Not-For-Profit Hospitals and Managed Care Organizations: Why the 501c)(3) Tax-Exempt Status Should Be Revised

Andrew C. Papa (Young Conaway) has published Not-For-Profit Hospitals and Managed Care Organizations: Why the 501c)(3) Tax-Exempt Status Should Be Revised in the DePaul Journal of Health Care Law. Here is the abstract:

Healthcare organizations abuse the 501(c)(3) tax-exempt status—reaping tax benefits but failing to give back to their local communities in return. Congress created the 501(c)(3) tax-exempt status to benefit the poor and impoverished. Yet, not-for-profit hospitals and managed care organizations are neither required to offer services to the poor nor required to offer emergency care services to their local communities. Instead, they charge higher prices in their increasingly concentrated markets. Therefore, consumers subsidize the same not-for-profit healthcare systems that charge them higher prices.

This Article analyzes government-placed incentives under the 501(c)(3) tax-exempt status, demonstrating how not-for-profit hospitals unfairly compete with for-profit hospitals. Studies show that not-for-profit hospitals have larger profit spreads than their for-profit counterparts. This Article will also demonstrate how the government encourages not-for-profit healthcare entities to increase their market power and extract rents from consumers. Today, the out-patient care business model fractionalizes the healthcare industry. Subsequently, not-for-profit healthcare entities can now acquire assets or firms in a piecemeal fashion, resulting in highly concentrated markets.

The third-party payor system and the Affordable Care Act exacerbate the issue, destroying traditional market forces. The third-party payor system creates a disconnect between the true provider and true consumer of healthcare treatment. The Affordable Care Act imposed additional requirements on not-for-profit hospitals—intending to incentivize charitable giving. Instead, the Affordable Care Act’s additional requirements incentivize profit-maximizing behavior at the expense of charitable giving. Because the healthcare industry suffers from a misalignment of pecuniary incentives and public health needs, creating clout on who the actual winners and losers are, the tax-exempt status should be revisited.

Lloyd Mayer

DAFs and Redirected Giving Report; The Role of State AGs in Regulating DAFs

Last week the Boston College Law School Forum on Philanthropy and the Public Good released a report by James Andreoni (U.C. San Diego) and Ray Madoff (Boston College ) titled Impact of the Rise of Commercial Donor-Advised Funds on the Charitable Landscape 1991-2019. Here is the conclusion:

This report has examined existing data about changes in the charitable landscape since the creation of the first commercial donor-advised fund. The following are the key findings of this analysis:

• There is no evidence that the proliferation of donor advised funds has resulted in an increase in individual charitable giving as individual giving has remained largely constant as a percentage of disposable income, and is currently at the low-end of the range.

• While individual giving has remained largely constant, there has been a substantial shift in this giving toward donations to private foundations and donor-advised funds and away from direct giving to charities. Combined giving to donor-advised funds and private foundations has increased from 5% in 1991 to 28% in 2019, an increase of 460%.

• The value of assets in donor advised funds and private foundations have increased
  significantly over the past thirty years.

• Though more funds are flowing into, and growing in, private foundations and donor advised funds, there is no evidence that charities have benefitted from this trend.

• In the five-year period prior to 1991, charities received on average 94.1% of all
  individual giving. By contrast in the years 2014-2018 (the most recent years for which data is available), total donations received by charities (including grants from private foundations and donor-advised funds as well as direct giving) equaled between 71-75% of total individual giving.

• If charities had received donations at the rate of 94.1% of individual giving (the average rate that they received in the 5-year period before commercial donor-advised funds), they would have received an additional $300 billion over those 5 years.

Coverage: Chronicle of Philanthropy. 

The Minnesota Council of Nonprofits also recently posted a paper presented at a conference a year ago titled Private Foundation Grants to DAFs: Attorney General Charitable Trust Oversight Calls for Disclosure of Use of Funds. Here is the abstract:

$3 billion was transferred from over 2,200 U.S. private foundations to five donor advised fund (DAF) sponsors between 2010 and 2018. Within this universe, a growing number of private foundations have made a single grant during a reporting year to a commercial DAF. Looking just at transfers to the top five commercial DAF sponsors, 35 foundations transferred the entirety of their annual grantmaking to DAFs between 2010 and 2018.

These transactions offered no tax benefit, but in effect excused private foundations from two legal requirements for U.S.-based private foundations derived from the Tax Reform Act of 1969: reporting grant recipients1 and the 5 percent annual payout requirement.2 Such grantmaking, while facially charitable and in-line with the requirements put forth in the 1969 legislation, not only risks breaches of restrictions established by the foundations’ founding documents but also obscures all aspects of the recipients of private foundation funding by providing no context for when or where the charitable dollars will be used.

Private foundation-to-DAF transfers frustrate state attorneys general’s ability to fulfill their supervisory duties to monitor and ensure that charitable dollars held by charitable trusts are used for their intended purpose.

This paper examines the governing authority and practices of state attorneys general offices as relating to a special problem of charitable trust enforcement: private foundation grantmaking to commercial DAFs. The authors examine the regulatory challenges based on interviews with both current and former attorneys from nine attorney general offices, as well as interviews with commercial DAF sponsors. Charities regulators’ ability to fulfill their supervisory duties related to private foundation-to-DAF grantmaking is blocked by the lack of transparency on the use of funds transferred to DAFs. Thus, charities regulators cannot ensure that private foundations’ grantmaking fulfills restrictions on their charitable giving, and the public is unable to see charitable activity ordinarily subject to public inspection.

In order to equip charity regulators to effectively enforce state charitable trust requirements, the paper concludes with two recommendations:

1. Charitable trusts should be required to report to state attorneys general all grants made or approved for future payment from DAF accounts to which they have transferred funds, subject to public inspection, and

2. Attorney General’s offices should respond to the growth of charitable funds held in trust by devoting increased resources to monitoring charitable trusts and donor advised funds.

Lloyd Mayer

Soskis: Norms and Narratives That Shape US Charitable and Philanthropic Giving

Benjamin Soskis (Urban Institute) has posted Norms and Narratives That Shape US Charitable and Philanthropic Giving. Here is the first paragraph of the abstract:

The past few decades have brought about a profound shift in the norms and narratives surrounding smaller-scale charitable giving and larger-scale philanthropic giving. In this report, I analyze some of the most significant of those norms and narratives—that is, the rules governing accepted or valued charitable and philanthropic behavior and the replicable, archetypal stories that have developed to make sense of that behavior. I also examine how those norms and narratives have been shaped by and have shaped responses in the United States to the COVID-19 pandemic and to the mass protests after the killing of George Floyd. This analysis focuses on two clusters of giving norms and narratives: one surrounding the relationship between large-scale and small-scale giving, and one surrounding time-based considerations in giving.

Lloyd Mayer

Zolt: Cross-Border Philanthropy: A U.S. Perspective

Eric M. Zolt (UCLA) has posted Cross-Border Philanthropy: A U.S. Perspective. Here is the abstract:

Americans lead the world in supporting charitable activities (both in the U.S. and abroad). For foreign charitable activities, two key questions arise:

1. Should tax benefits support charitable activities outside the U.S.?
2. Should the U.S. tax system treat contributions to foreign charities differently from contributions to domestic charities?

U.S. tax law imposes remarkably low barriers to cross-border philanthropy. Contributions to U.S. charities are deductible even if all charitable activity takes place outside the U.S. Nominally, direct contributions to foreign charities are generally not deductible for income tax purposes. Practically, donors can easily work around this restriction (at relatively low costs and complexity) by transmuting non-deductible contributions to foreign charities into deductible contributions to domestic charities.

The hard question is normative: what should the law be? This chapter provides a framework for examining the desirability of the current regime and the different factors policy-makers may find useful in considering options to either reduce or increase barriers to cross-border philanthropy.

Lloyd Mayer

Articles on Conservation Easements, As DOJ and IRS Enforcement Efforts Continue

A number of commentators have recently posted articles addressing conservation easement deductions. Several of these articles were originally published in 2020 in a Tax Notes publication, but for readers who may not have access to Tax Notes publications they are now available on SSRN and so I am including them in this list:

• Jessica Jay, Down the Rabbit Hole with the IRS' Challenge to Perpetual Conservation Easements, Part Two, in the Environmental Law Reporter.

• Nancy Ortmeyer Kuhn, The Eleventh Circuit Court of Appeals: The Current Focus for Conservation Easements, in Bloomberg Tax.

• Douglas L. Longhofer and Katherine Jordan, Eroding Conservation, Preserving Abuse — A Flawed IRS Strategy, originally published in Tax Notes Federal.

• Nancy A. McLaughlin, Amendment Clauses in Easements: Ensuring Protection in Perpetuity, originally published in Tax Notes.

• Nancy A. McLaughlin and Ann Taylor Schwing, Conservation Easements and Development Rights: Law and Policy, originally published in Tax Notes.

In addition, the only exempt organizations issue that appears to have been raised by the National Taxpayer Advocate in her latest report to Congress focused on conservation easements. The report identified syndicated conservation easements as being at the center of the "most significant cases" involving a charitable contribution deduction issue, which was in turn identified as the ninth most litigated issue. The report notes that perpetuity, as opposed to valuation, has become the focus of recent conservation easement cases. See pages 216-219 of the report for more details.

Finally, Tax Notes reports that the DOJ has reached a settlement with a consultant who was one of the targets of the DOJ's investigation of syndicated conservation easements. Without admitting any wrongdoing, the consultant agreed to be permanently enjoined from promoting or arranging a qualified conservation easement contribution in the future (and to pay an amount that was not specific in the court filing).

UPDATE: Tax Notes reports that taxpayers involved in syndicated conservation easement deals have now filed a class action lawsuit against promoters of those deals.

Lloyd Mayer

DAF Debate Heats Up, New Data Emerges

Recent weeks have seen a flurry of pieces relating to changing the legal rules for donor advised funds or DAFs. Notable contributions include:

• Craig Kennedy and William Schambra published Conservatives Should Applaud — Not Fight — Efforts to Change Philanthropic Giving Rules in The Chronicle of Philanthropy, criticizing opposition to the Initiative to Accelerate Charitable Giving's proposed reforms.

• Dan Petegorsky published DAF Numbers Obscure Who’s Giving and How Much in InsidePhilanthropy, also criticizing opposition to the proposed reforms.

• Edward Zelinsky (Cardozo) published A Response to the Initiative to Accelerate Charitable Giving in Tax Notes, "agreeing with much (but not all) of its perspective and arguing that the rules applied to private foundations should also govern donor-advised funds."

At the same time, data about DAF contributions and donations continues to emerge (some from sources with a stake in the reform debate), including:

• AEI and The Philanthropy Roundtable released a new paper titled Appreciation in Donor-Advised Funds: An Analysis of Major Sponsors, describing how DAFs "have become the fastest-growing vehicle for charitable giving in recent years."

• The Community Foundation Public Awareness Initiative reported that For Every Dollar Contributed to Community Foundation DAFs in 2019, Donors Granted $1.08 in 2020, with the $6.7 billion donated by community foundation DAFs to nonprofits in 2020 representing an increase of 41 percent over 2019 donations.

• The National Philanthropic Trust published its 14th annual Donor-Advised Fund Report, reporting continued rapid growth of contributions to DAFs and donations from DAFs to charities through 2019.

• The Nonprofit Quarterly published COVID-19 and Donor-Advised Funds in 2020: What Do the Numbers Tell Us?, reporting data regarding disbursements by DAFs in 2019 and 2020.

• The Nonprofit Times reported that the largest DAF sponsor organizations reported significant increases in distributions from DAFs to charities in 2020, including a 24% increase at Fidelity Charitable, a 171% increase at the National Philanthropic Trust, and a 35% increase at Schwab Charitable.

Despite this debate and new information, it is unclear at this point whether there is any interest in Congress for changing the rules for DAFs. And the IRS is still considering comments it received in response to Notice 2017-73 relating to various issues involving DAFs.

Lloyd Mayer