Wednesday, July 23, 2014
Writing in yesterday's Chronicle of Philanthropy, Pablo Eisenberg, a senior fellow at the Center for Public and Nonprofit Leadership at the Georgetown Public Policy Institute, calls on nonprofits to start a campaign to ask Congress and the IRS to curtail excessive trustee fees paid by nonprofit foundations.
According to Eisenberg, "[t]he tens of millions of dollars that foundations pay to trustees every year is a total waste of money that could be used to finance needy nonprofit organizations. He contends that:
Fresh concerns about those fees were raised when the news become public that the Otto Bremer Foundation, which last year gave $38-million in grants, had paid its three board trustees more than $1.2-million in 2013. So egregious was the payment that Aaron Dorfman, executive director of the National Committee for Responsive Philanthropy, requested an immediate investigation by the Minnesota attorney general.
The Bremer trustees had fired the foundation’s executive director, leaving them totally in charge without any accountability mechanisms in place.
Data about the total amount trustees are paid are hard to come by, but a Chronicle of Philanthropy survey in 2011 found that 38 of the nation’s 50 largest foundations paid a fee to their trustees amounting to a total of $11-million.
He also reports that
[a] 2006 Urban Institute report about the compensation practices of 10,000 of the largest foundations based on 2001 tax returns found that 3,400 of the foundations had paid a total of almost $200-million in trustee fees.
Finally, he reveals that an earlier study of 238 foundations he conducted with two of his graduate students at Georgetown University in 2003 revealed that the foundations "had paid more than $44-million in trustee fees. About two-thirds of the 176 largest foundations compensated their board members, while 79 percent of the 62 smaller foundations surveyed paid their board members."
On the basis of this sample, Eisenberg and his students estimated that foundations throughout the country had paid more than $300-million in trustee fees.
That is a lot of money. Moreover, says Eisenberg, it is infuriating:
What has infuriated foundation critics and many nonprofits is that foundation trustees are among the wealthiest and highest-paid individuals in the country. As Aaron Dorfman has noted, most foundation trustees would take on their duties even if they weren’t paid. Most other nonprofits don’t pay their trustees, after all.
But habits die hard. Many foundations maintain that it is important to offer fees as an incentive to busy corporate and wealthy individuals who might otherwise not give their time. And, they add, it is difficult enough to recruit topnotch board members; fees just make the process easier. The corporate culture that believes "time is money" is a tradition that lingers on.
Eisenberg admits, though, that annoyance at the practice of trustee fees has not yet morphed into sufficient energy and public pressure that could produce some changes. Neither philanthropic trade associations, philanthropy roundtables, nor regulators and legislators appear ready to do something about the excessive fees. Hence, Eisenberg has a solution: nonprofits should stasrt a campaign to have Congress and the IRS curtail these excessive trustee fees. Eisenberg concludes:
Nonprofits should start a campaign to ask Congress and the IRS to curtail excessive fees. Almost all nonprofit groups hungry for new dollars should be willing to support the idea, and how could politicians be opposed to the idea that more money goes to communities than affluent trustees? Now we just need some leadership to get the movement going.
Will the nonprofits respond? Time will tell.
The Nonprofit Times is reporting that the search for someone to fill the shoes of retiring founding dean Eugene R. Tempel at the Indiana University Lilly Family School of Philanthropy has been narrowed down to two candidates.
The Times reports that while the university will only confirm that the search is ongoing and the intention is to have a new dean by January 1, 2015, the Times has information that only two candidates -- neither of whom is from Indiana University -- remain.
The Times continues:
Multiple sources have told The NonProfit Times that the process has not been as smooth as was expected. In fact, there has been some consideration as to under what terms Tempel might stay on for up to one more year if the new dean is not selected soon, according to multiple sources within the university and search process.
The search committee presented candidates to Charles R. Bantz, Ph.D., chancellor of the Indianapolis campus, known as IPUI since it is shared with Purdue University. There were three finalists but one of them, from a university in California, has withdrawn his application, according to sources.
Andrew R. Klein, J.D., chair of the IU Lilly Family School of Philanthropy selection committee and dean of the IU Robert H. McKinney School of Law, disputed the idea that the search has not gone as smoothly as hoped. He said the plan was to present a pool of candidates to the administration by mid-summer and that has happened. He said eight candidates were reduced to “those who came back to campus.”
He declined to confirm the number of candidates who made campus visits and the number of candidates still in the running for the coveted position in nonprofit academia. He cited a confidentiality pledge to the candidates who are still employed. “Chancellor Bantz is in consultation with President (Michael A.) McRobbie about the search,” he said. “The appointment of any dean is ultimately made by the Board of Trustees of Indiana University,” Klein said. “I am not involved in the conversations at this point, but I am certain that Chancellor Bantz is consulting with President McRobbie to make sure the administration presents a candidate to the board in which they both have confidence.”
The Lilly Family School evolved from the internationally known Center on Philanthropy of the IU-Purdue University campus in Indianapolis, Indiana. The school encompasses and expands all of the previous academic degree, research and training programs at Indiana University, including The Fund Raising School, the Lake Institute on Faith & Giving, the Women’s Philanthropy Institute and International Programs.
Monday, July 21, 2014
This morning I came across this touching story published in Friday's Chronicle of Philanthropy. The story begins by stating that the biggest danger for people living with severe mental illnesses is not navigating the health-care system or finding a good therapist, but living in isolation. Because people with mental illnesses no longer spend much time in hospitals, they end up living alone. According to Kenneth Dudek, president of Fountain House, a New York charity that helps mentally ill people live independently, living in isolation makes the illness worse and the patients do not get the help they need.
For its efforts to provide a sense of community to the mentally ill, Fountain House and its sister organization, Clubhouse International, have won the Conrad N. Hilton Humnanitarian Prize, a $1.5 million award that recognizes an organization that works to alleviate human suffering.
This is the first time the prize has been awarded to a mental-health organization. According to Hawley Hilton McAuliffe, a member of the prize's jury and granddaughter of Conrad Hilton, the organizations were chosen because mental health has not received much attention despite the prevalence of the problem. Said McAuliffe: "It's a humanitarian crisis at this point, especially here in the United States. It's one area that has not been addressed by many organizations."
McAuliffe revealed that as the prize jury deliberated about this year's award, it considered Fountain House's success at giving mentally ill people opportunities to find fellowship. It also considered the recent spate of mass shootings by mentally ill individuals, in particular the spree committed by 22-year-old Elliott Rodger, who killed six people and injured 13 others near the campus of the University of California at Santa Barbara in May. The Chornicle quotes McAuliffe as saying, "Here was this isolated individual who had no sense of community. Wouldn't Fountain House have been a good resource for him?"
The truth is, many mentally ill people are in need of similar resources. The Chronicle states it well:
In the United States alone, 13.6 million people live with a serious mental illness like major depression, bipolar disorder, or schizophrenia, according to the National Alliance on Mental Illness. And the World Health Organization estimates 450 million people worldwide suffer from such illnesses. Three-quarters of chronic mental illnesses begin by the age of 24, but people sometimes wait decades to seek treatment. Most alarming, nearly half of all homeless adults in America has a severe mental illness.
That is a sobering statistic. I applaud Fountain House and Clubhouse International for the assistance they give to some of the suffering people.
Saturday, July 19, 2014
Unsurprisingly, the U.S. House passed charitable giving legislation, the “America Gives More Act,” on July 17 by a vote of 277-130. (For a summary of the bill’s contents, see prior blog post.) Broadly, the bill would encourage food donations, transfers from IRAs, conservation easement donations, extend the time to claim charitable deductions to April 15, and reduce the tax on private foundation investment income. According to the Joint Committee on Taxation, the legislation would cost taxpayers $16.2 billion over ten years.
Supporters of the bill (mostly Republicans) emphasized familiar themes. Charitable giving legislation is good because giving helps those in need (see, e.g., Chairman Camp's floor statement, Majority Whip McCarthy's statement) and because giving itself should be encouraged. The bill was also praised as a simplification (Statement of Representative Griffin) (though only one of the five provisions simplifies the Code).
Opponents of the bill (all Democrats, but one), though praiseworthy of charitable giving in general, cited in particular the failure to pay for the tax benefits and the resulting increase in the deficit. (Floor statement of Representative Levin, the White House.) The White House also objected that the giving incentives would benefit high-income taxpayers. One Democrat, Representative Lloyd Doggett, objected on substantive grounds, saying that the incentives for donations of food inventory encouraged donations of items with "no nutritional value, like Twinkies, candy, stale potato chips, and expired foods.” “We do not need a permanent tax break for Twinkies” he said. (Video of Mr. Doggett's commentary on the food proposal here.)
How to assess the legislation? Helping “the needy” certainly is a familiar rationale cited in support of charitable giving legislation. But it bears repeating that “the needy” is but one segment of the 501(c)(3) sector. (Additional commentary on who benefits from the charitable deduction here). Broad-based charitable giving incentives such as extending the filing deadline and encouraging more IRA transfers are not directed toward helping the needy. Thus, if this really is a goal of lawmakers, much more targeted legislation to benefit social safety net organizations would be more appropriate.
Further, it is hard to ignore the absence of offsets. When tax benefits like these are not paid for, the question should be whether the America Gives More Act is the best use of $16.2 billion dollars. It is ironic that about 64 percent of the Act’s cost comes from extending two provisions (the special rule for food donations and the exclusion for IRA distributions) that were allowed to expire in the Tax Reform Act, which undermines the argument that this legislation is an optimal use of tax dollars.
Other provisions have some merit, depending on the goal. Extending the time to claim donations to April 15 may be a cost effective way to get more dollars to 501(c)(3) organizations, assuming the IRS can administer the provision to protect against double deductions.
Streamlining the excise tax on private foundations will likely result in diverting dollars from the U.S. Treasury to foundation grantees – sort of an inter-501(c)(3) sector transfer. This may be desirable, depending on one's judgment about whether foundations or the government spends money more in the public interest. But the provision does not result in new charitable dollars and so is not a giving incentive.
The permanent extension and expansion of the special rules for deductions of conservation easements without any associated reforms is harder to understand, given the many administrative difficulties and abuses associated with this provision of the tax Code. (For commentary, see Halperin, McLaughlin, Colinvaux).
So although there may be merit in the margins to some provisions, as a whole, the case for the legislation without offsets is rather underwhelming. If there were offsets, then at least the trade-offs could be more directly assessed.
In short, although it is obvious that the America Gives More Act is not intended as a tax reform measure but rather reflects legislative business as usual, nonetheless it is disappointing to see more give-aways without much if any consideration of who should pay, and whether the give-aways are really worth it. But without an offset, there is little electoral cost to voting in favor of legislation, especially charitable giving legislation, which is always easy to frame, without much analysis, as helping those in need.
Wednesday, July 16, 2014
The Center for Public Integrity has released an investigative report about the IRS Tea Party targeting scandal, in which the CPI reviewed thousands of pages of documents and interviewed dozens of insiders. The report provides a good high-level overview of the scandal, and makes a few useful findings about the Exempt Organization function within the IRS. To many, the findings may come as no surprise, but bear repeating: over time the IRS has fewer employees to regulate a rapidly growing sector, the already low rate at which the IRS investigates exempt organizations is shrinking, the social welfare category (i.e., the one at the heart of the targeting scandal) is growing, and the IRS is increasingly timid – backing down to political pressure. Unfortunately, none of this makes for an effective overseer of a vital part of civil society.
Although the report is useful, some peripheral statements should be more closely considered if only because a number of misconceptions about the IRS targeting scandal continue inadvertently to be spread. One statement in the report is that “It wasnʼt until the Supreme Courtʼs Citizens United v. Federal Election Commission decision in 2010, however, that politically active nonprofits — social welfare groups as well as 501(c)(5) labor unions and 501(c)(6) trade groups — became a major force in political elections, all while receiving a de facto tax subsidy.” The implication from the “de facto tax subsidy” language is that political activity, when conducted after Citizens United by a noncharitable tax-exempt like a 501(c)(4), (5), or (6), gets an unwarranted subsidy and is abusive. But this is not really right. Political activity by a noncharitable exempt generally is not tax-advantaged relative to the same activity by a political organization (aka a “527”). Rather, political activity by a noncharitable exempt actually triggers a tax that is intended to make the tax treatment of political activity consistent across sections of the tax code. There is no abusive subsidy for political activity here.
Later, the report notes that “Social welfare and other nonprofit groups galloped into the post-Citizens United era with an inherent advantage over overtly political groups: They could hide the source of their funding, regardless of whether those sources were corporations, individuals or other special interests. And they're only required tell the FEC the names of donors who give money to help produce specific ads — something that rarely happens.” This point bears more than passing emphasis. The anonymity offered to donors by noncharitable exempt status, and not a tax subsidy, is the underlying legal issue at the heart of the targeting scandal post-Citizens United. In other words, the targeting scandal is not really about taxes at all, it is about donor disclosure or the lack thereof.
The report says that: “The tea party affair has directed attention away from what many IRS workers say is the much larger problem — regulating the activities of politically charged nonprofits.” and also that the IRS is “supposed to ensure 501(c) nonprofit organizations don't become more political than the law allows.” The broad meaning here is right: the targeting scandal has diverted attention from some real problems with the legal architecture. Also, the IRS does have a legitimate role to play when it comes to political activity and tax exemption. But these statements unintentionally play into another misconception about the IRS’s role when it comes to the political activity of noncharitable exempts and political organizations. In this context, the IRS does not really “regulate” political activity in the sense of deciding whether or not the activity is permitted. Rather, the IRS’s function is to classify organizations based on their purpose as measured by the quantum of their activities. This is an important distinction. The IRS does not regulate speech or activity as such; rather, the IRS, as charged by Congress, assesses organization purposes and activities and applies a tax label ((c)(4), 527, etc.). So political activity is relevant to tax classification, but it is not a question of permitting or prohibiting political activity.
The report also states that “Political ‘527 groups’ are tax exempt like 501(c)(4) groups, but unlike them, they must disclose their donors.” It should be noted that the point about disclosure is correct, but not the point about tax-exemption. Broadly, 527 groups are taxed on their investment income whereas 501(c)(4)s and other noncharitable exempts are not. So the tax treatment is not equivalent. But as noted earlier, if a noncharitable exempt engages in political activity, then a tax is triggered, which is intended to make the organizational tax treatment of political activity broadly uniform across exemption categories.
But none of this undermines the key thrust of the report's message -- that the regulatory environment of the IRS exempt organization function is in crisis and in need of constructive solutions.
Tuesday, July 15, 2014
The House of Representatives this week is likely to take up charitable giving legislation. Last week, the Rules Committee reported out H.R. 4619, which modifies and expands on a charitable giving bill of the same number marked up by the Ways and Means Committee on May 29. Committee Report here.
Renamed the “America Gives More Act of 2014,” H.R. 4619 combines several separate charitable giving measures. The charitable giving incentives of H.R. 4619 now are:
- Food Donations. Make the special enhanced deduction for charitable contributions of food inventory permanent and modify this enhanced deduction to: increase the percentage limitation from ten to fifteen percent for business taxpayers, provide for a special deemed basis rule for certain taxpayers, and permit fair market value of donated food to be determined disregarding the fact that there may not be a market for the food, among other special valuation rules. (This provision applies retroactively to restore this expired deduction.)
- IRA Distributions to Charity. Make permanent the exclusion for distributions from individual retirement arrangements to certain public charities. (This provision applies retroactively to restore this expired exclusion.)
- Conservation Easements. Make permanent the special percentage limitations and carryforwards for charitable donations of conservation easements, and extend such favorable treatment to contributions by certain Native Corporations, as defined under the Alaska Native Claims Settlement Act. (This provision applies retroactively to restore this expired deduction.)
- Extend Time to Claim. Generally allow taxpayers until the tax-filing deadline (April 15) to claim charitable deductions for the tax year.
- Reduce Foundation Excise Tax on Investment Income. Replace the two rates of tax on the investment income of private foundations with a single flat rate of one percent.
These provisions are broadly consistent with provisions in the “Tax Reform Act of 2014,” a discussion draft released by Ways and Means Committee Chairman Dave Camp in February, with some notable exceptions. For instance, the Tax Reform Act:
- Eliminates the special enhanced deduction for food inventory rather than retaining and expanding it.
- Does not include the IRA distribution exclusion, i.e., allows it to expire.
- Does not expand the special rules for donations of conservation easements to new donor categories, and provides for a modest reform that no deduction is allowed for easements relating to golf courses, a proposal also advocated by the Treasury Department (page 95).
Whether the differences between H.R. 4619 and the Tax Reform Act reflect a change in position (and a move away from reform) or reflect the fact that H.R. 4619 is not primarily a tax reform measure remain to be seen.
Saturday, July 5, 2014
There has been an enormous amount of academic, other commentator, and media coverage of the Supreme Court's recent decision in Burwell v. Hobby Lobby Stores. Included in the discussion has been much speculation about how the decision, involving a closely-held, family-owned, for-profit corporation, impacts ongoing litigation involving religious nonprofit corporations challenging whether the limited accommodation provided for them under the same rule (requiring coverage of contraceptive services) is sufficient under the federal Religious Freedom Restoration Act. Language in the majority opinion (slip op. p. 44) and in Justice Kennedy's concurring opinion (slip op. p. 3) seems to suggest although not hold that it is, but on Thursday the Court issued an injunction barring the federal government from requiring Wheaton College to use the form prescribed by the government to implement the accommodation, pending resolution of the College's appeal. The order generated a strong dissent from Justice Sotomayor (joined by Justice Ginsburg and Justice Kagan), who concluded the College had not stated a viable claim under RFRA. The dissent is unusual, especially given that the order on its face makes it clear that it "should not be construed as an expression of the Court's views on the merits."
My understanding of what is going on here is as follows. First, many religious nonprofits (my employer, the University of Notre Dame, included) are not flatly exempted from the requirement to cover contraceptive services. The existing flat exemption is limited to churches and, using terms familiar to nonprofit scholars and practiti0ners and indeed defined by reference to Internal Revenue Code § 6033, conventions or associations of churches, integrated auxiliaries of churches, and the exclusively religious activities of any religious order. Other religious nonprofits instead are accommodated by being given the opportunity to complete the above-mentioned form stating their objection to providing some or all of the required coverage. The effect of this form differs depending on whether the nonprofit otherwise would provide such coverage through a third-party insurer or through a third-party administrator because the nonprofit is self-insured.
The University of Notre Dame provides a good example of both of these situations and how they differ, particularly from the perspective of the nonprofit (and indeed Notre Dame is challenging the sufficiency of the accommodation in court). These facts are drawn from the Seventh Circuit's recent opinion adverse to Notre Dame, although it should be noted that many similarly situated religious nonprofits have won similar cases in the lower federal courts (pre-Hobby Lobby). For those students at Notre Dame who need health insurance, Notre Dame has a contract permitting students to purchase such insurance from an insurance company, Aetna. The effect of Notre Dame completing the above form (EBSA Form 700) is to tell Aetna Notre Dame (and its students) will not pay for such coverage, which effectively requires Aetna to do so because under the Affordable Care Act health insurance companies have to provide such coverage. So by completing the form, Notre Dame effectively shifts the cost of such coverage from itself (and its students) to Aetna.
For faculty and staff at Notre Dame who need health insurance, the situation is subtlely different. Notre Dame is self-insured, which means it pays for all covered health insurance (subject to a modest employee up-front contribution and co-pays) although it hires a third-party to administer this coverage (Meritain). The difference here is that Meritian is not a health insurer, so it is not obligated to provide coverage for contraceptive services even if Notre Dame refuses to do so absent an additional legal step. The additional legal step providing by the current accommodation is that Notre Dame's completion of the EBSA Form 700 triggers a new requirement that Meritain provide this coverage, accompanied by a right for Meritain to obtain reimbursement of at least 110 percent of its costs of doing so from the federal government. My understanding is that under Notre Dame's understanding of the theological concept of cooperating with evil, since the effect of Notre Dame completing the form is to trigger a new requirement that Meritain provide contraceptive coverage (albeit ultimatley paid for by the federal government), being required to complete the form is viewed by Notre Dame as a greater burden on its exercise of religion that exists when the coverage is provided by a third-party health insurer (although I assume Notre Dame is continuing to argue that the accommodation in that situation is also not sufficient under RFRA). As the Supreme Court majority noted in the Hobby Lobby decision (slip op. pp. 36-38), whether a particular act is sufficiently connected to the ultimate evil objected to make that act itself morally objectionable is itself a religious belief and so subject only to test of sincerity in the courts (which test I assume Notre Dame would have no trouble passing).
Bottom line, the Hobby Lobby decision does not clearly resolve the cases involving religious nopnrofits that are not flatly exempt from the contraceptives services coverage requirement but instead accommodated as described above. Furthermore, those religious noprofits that provide health coverage through self-insurance as opposed to a through a third-party insurer have a subtely stronger claim that the existing accommodation is not sufficient under RFRA. Whether the lower courts, and ultimatley the Supreme Court, believe this difference is determinative remains to be seen.
Thursday, July 3, 2014
Third Sector reports that the Charities Aid Foundation has issued a report criticizing several countries for introducing legislation or taking other steps aimed at preventing nonprofits from criticizing their governments. Titled Future World Giving: Enabling an Independent Not-for-profit Sector, the report highlights six countries that have introduced such legislation and several others where government critics, including the leaders and members of NGOs, face prosecution and other government persecution. The report also highlights how governments often use their funding of NGOs to impose conditions on those groups that effectively silence them, an issue that recently reached the Supreme Court here in the United States.
The NY Times Dealbook reports that Geoffrey P. Raynor, founder of the hedge fund Q Investments, has funded classes on philanthropy at several prominent universities, including Harard, Northwestern, Princeton, Stanford, and Yale. The classes give students real world experience in giving money away (tens of thousands of dollars for each group of enrolled students). They also give students an opportunity to question Mr. Raynor, who requires that he be given two hours to speak to the students personally. According to the article, some of those question and answer sessions have become a bit testy, with students challenging Mr. Raynor's approach to philanthropy and questioning how he made his money. The one lesson that all of the students seem to take away, however, is that giving away money well is harder than it first appears.
Nicholas Mirkay previously wrote in this space about the new California law that requires disclosure of donors and other information for nonprofits engaged in certain political communications in that state. New York also recently enacted new disclosure requirements for "independent expenditures" and then issued emergency regulations to implement these new rules that will impact nonprofits engaged in certain political communications in that state.
For purposes of the New York law, the range of communications that trigger disclosure is much broader than the federal definition of "express advocacy" or "electioneering communications". More specifically, those communications are defined as follows:
- Type of Communication: Audio or video communication via broadcast, cable, or satellite, written communication via advertisements, pamphlets, circulars, flayers, brochures, or letterheads, or other published statements (including paid Internet advertising), if the communication is conveyed to 500 or more members of a general public audience.
- Content of Communication: Either contains words such as "vote," "oppose," "support," "elect," "defeat," or "reject" that call for the election or defeat of a cleary identified candidate or refers to and advocates for or against a clearly identified candidate or ballot propoal; whether a communication advocates for or against is based on an all relevant facts and circumstances test.
- Timing of Communication: Anytime for communications that contains the express advocacy words; on or after January 1 of the election year for other communications that advocate for or against.
All groups covered by these rules, including nonprofits, must register before making any independent expenditures and then must file reports disclosing both expenditure details and identifying information for any person providing a contribution of $1,000 or more.
In related news, according to a Politico report Citizens United recently announced it plans to sue the New York Attorney General over his issuance of earlier regulations imposing new disclosure requirements on nonprofits engaged in election-related spending. It is not clear if the lawsuit will be expanded to also encompass the recently enacted disclosure rules.
Wednesday, July 2, 2014
In an interesting example of government transparency, Third Sector reports that the Charity Commission for England and Wales has issued its Annual Complaints Review showing that complaints made against the Commission increased in 2013/14 over a third from the previous year and that the proportion of complaints fully or partially upheld almost doubled (from 19 percent to 34 percent). More specifically, the Commission received 152 "Stage 1" complaints, with about a third of the complaints moving to Stage 2 consideration (because the customer was dissatisfied after the Stage 1 review). To put the number of complaints in context, the Commission during the same period received 6,681 applications for registration as a charity (or about a tenth of the § 501(c)(3) applications the IRS receives annually). The most common issue raised (and some complaints raised multiple issues) was insufficient regulatory intervention by the Commission.
While I realize that the National Taxpayer Advocate may to some extent gather similar information with respect to the IRS, it is telling that when the Advocate's office reviewed the exempt organization application process last summer it began by stating that "[i]In addressing the exempt organization (EO) issues, the Advocate’s office does not have investigative authority and did not seek to duplicate other ongoing investigations." The existence of this type of detailed information in the UK may be another argument for a national exempt organizations regulator that is not part of the IRS, as Marc Owens has proposed.
Bloomberg Businessweek had a fascinating article in May detailing how three billionaires used a complex web of private foundations and limited liability companies to hide not their political activity (they are not the Koch brothers) but instead their charitable giving. Committed to keeping a low profile while supporting their desired causes, the reporter who wrote the story only stumbled across their activities when he noticed two multi-billion dollar charitable funds listed in an IRS database. It then apparently took a year to pull from public documents - IRS annual returns, secretary of state filings, and so on - the overall structure and the individuals ultimately behind it: the three founders of a little known but apparently highly successful hedge fund, TGS Management. Since 2000 the two funds have distributed more than $1.8 billion to various charities (including $700 million to combat Huntington's disease), plus an additional $1 billion that went to the Vanguard Charitable Endowment Program and so the ultimate charitable recipients for that amount are not known.
Bottom line, it is still possible to be a anonymous charitable giver, even on a very large scale, at least for a while.
We previously blogged (here and here) about the lawsuit Princeton, New Jersey residents filed in 2013 against Princeton University, arguing that the University no longer qualified for exemption from property taxes because of its hundreds of millions of dollars in revenues from royalties and commercial ventures. We missed, however, the latest major development in this dispute, which was reported by Bloomberg. In late April of this year, the University announced that it had entered into an agreement with the town to pay more than $24 million, mostly in unrestricted payments, to the town on a voluntary, one-time basis over the next seven years. The amount is a significant increase over the amounts Princeton had been paying the town voluntarily.
The agreements appears designed to undermine the pending lawsuit, and it apparently surprised the residents who brought the claim and their attorney based on comments in the Bloomberg article. I am not familiar enough with the lawsuit, the agreement, or New Jersey law to know if the agreement effecctively moots the lawsuit or otherwise provides grounds for a motion to dismiss by the Unviersity, but I assume that the University's lawyers will eventually argue something along these lines.
Tuesday, July 1, 2014
The IRS today issued rules governing use of the recently proposed Form 1023-EZ. As detailed in the instructions for this form, an organization must answer "No" to all three of the following questions relating to financial size in order to be eligible to use this shortened application form:
1. Do you project that your annual gross receipts will exceed $50,000 in any of the next 3 years?
2. Have your annual gross receipts exceeded $50,000 in any of the past 3 years?
3. Do you have total assets in excess of $250,000?
The instructions also provide 23 other questions relating to the characteristics of the applying organization (such as whether the organization is a church, school, hospital, or supporting organization), that also all have to be answered "No" for the organization to be eligible to use the Form 1023-EZ. More information about the new form is available from the IRS here, including how to obtain a copy of the form.
The IRS also issued final and temporary regulations, with the temporary regulations also serving a proposed regulations, governing which organizations are eligible to use the streamlined application process for recognition of tax-exempt status under section 501(c)(3) provided by Form 1023. Finally, the IRS issued Revenue Procedure 2014-40, which "sets forth procedures for applying for and for issuing determination letters on the exempt status under § 501(c)(3) of the Internal Revenue Code (Code) using Form 1023-EZ, Streamlined Application for Recognition of Exemption under Section 501(c)(3) of the Internal Revenue Code. This revenue procedure is generally available for certain U.S. organizations with assets of $250,000 or less and annual gross receipts of $50,000 or less."
The Washington Post reports that the Corcoran Galley of Art has filed papers in D.C. Superior Court outlining its plan to keep its collection in the DC area through an arrangement with George Washington University ( GWToday announcement) and the National Gallery of Art (National Gallery announcement). As the article details, the plan is apparently driven by the fact the Corcoran has run deficits for 11 of the past 13 years, leading it to conclude that it is not financially possible for the gallery and related college to continue to operate in its current form. The Corcoran is therefore invoking the cy près doctrine to permit changes to how its collection and educational activities are handled in the future.
Under the plan the National Gallery will have first claim on the Corcoran's collection, with any art that the National Gallery chooses not to keep offered first to institutions within the city and then in a growing geographic area outside of the city. The Attorney General for the District of Columbia must approve any transfer of art outside the city, however. The entire process of allocating the artwork may start as early as mid-August. For its part, George Washington University will take over the Corcoran College of Art and Design and also maintain the Corcoran's existing gallery space, as a fail-safe location for the collection taken by the National Gallery. The Corcoran itself will continue to exist, but as a much smaller nonprofit organization devote to the arts.
For more information, see the motion filed by the The Trustee of the Corcoran Gallery of Art (courtesy of the Washington Post).
Hat Tip: Miriam Galston (GWU)
CNN reports that Quadriga Art, a for-profit charity fundraising company, has resolved an investigation by the New York Attorney General's office by agreeing to pay almost $10 million in damages and to forgive another almost $14 million in debt owed to the company. Nick Mirkay previously posted in this space on the still ongoing congressional investigation into this situation.
The CNN report states the focus of the investigation and settlement was the relationship between Quadriga and the Disabled Veterans National Foundation, a charity that Quadriga Art apparently helped set up in 2007 by fronting the charity's initial printing, mailing, and other fundraising costs. The relationship eventually led to the charity raising $116 million, but paying $104 million of that amount to Quadriga and owing Quadriga the debt forgiven in the settlement. As part of the settlement the Foundation also agreed to take a number of steps, including having its founding board members resign, creating a committee to reexamine its business model, and refraining from using Quadriga or a particular direct marketing company for three years.
Saturday, June 28, 2014
Seventeen Seventy Sherman Street, LLC v. Commissioner—Conservation Easement Conveyed for Quid Pro Quo Not Deductible and Negligence Penalty Applied
In Seventeen Seventy Sherman Street, LLC v. Comm’r, T.C. Memo. 2014-124, the Tax Court sustained the IRS’s complete disallowance of the LLC's claimed $7.15 million deduction for the conveyance to Historic Denver of interior and exterior conservation easements restricting the use of the Mosque of the El Jebel Shrine of the Ancient Arabic Order of Nobles of the Mystic Shrine. The shrine, which was built in 1906-1907 and includes many original features (including ornate stenciling, gilded bronze elevator doors, Tiffany glass, and ornate woodworking), is listed on the National Register of Historic Places and as a historic landmark by the City and County of Denver.
Quid Pro Quo
The LLC owned two properties on Sherman Street—the shrine and a parking lot. Prior to granting the easements, the LLC and the City of Denver entered into a development agreement in which, among other things, the LLC agreed to convey the easements to Historic Denver and rehabilitate the shrine in exchange for certain zoning changes to the shrine and the parking lot.
The Tax Court’s opinion nicely details the elements of a quid pro quo analysis in the charitable deduction context.
- A taxpayer's contribution is deductible ‘only if and to the extent it exceeds the market value of the benefit received.’
- ‘[t]he sine qua non of a charitable contribution is a transfer of money or property without adequate consideration.’
- ‘a charitable gift or contribution must be a payment made for detached and disinterested motives. This formulation is designed to ensure that the payor’s primary purpose is to assist the charity and not to secure some benefit personal to the payor.’
- The consideration received by the taxpayer need not be financial. Medical, educational, scientific, religious, or other benefits can be consideration that vitiates charitable intent.
- In ascertaining whether a given payment was made with the expectation of anything in return, courts examine the external features of the transaction. This avoids the need to conduct an imprecise inquiry into the motivations of individual taxpayers.
- The taxpayer claiming a deduction must, at a minimum, demonstrate that “he purposely contributed money or property in excess of the value of any benefit he received in return.”
- Thus, a taxpayer who receives goods or services in exchange for a contribution of property may still be entitled to a charitable deduction if the taxpayer (1) makes a contribution that exceeds the fair market value of the benefits received in exchange and (2) makes the excess payment with the intention of making a gift. Treasury Regulation § 1.170A–1(h)(1). If the taxpayer satisfies these requirements, the taxpayer is entitled to a deduction not to exceed the fair market value of the property the taxpayer transferred less the fair market value of the goods or services received. Id. § 1 .170A–1(h)(2).
The Tax Court explained that a quid pro quo analysis in the conservation easement donation context ordinarily requires two parts—(1) valuation of the contributed conservation easement and then (2) valuation of the consideration received in exchange for the easement. The court explained, however, that when a taxpayer grants a conservation easement as part of a quid pro quo exchange and fails to identify or value all of the consideration received, the taxpayer is not entitled to a deduction because he failed to comply with § 170 and the regulations. In such a case, explained the court, it is unnecessary to determine either the value of the easement or whether the taxpayer made an excess payment with the intention of making a gift. The taxpayer’s failure to identify or value all of the consideration received and, thus, to prove that the value of the easement exceeded the value of the consideration is fatal to the deduction.
In this case, the Tax Court found that the LLC had received two types of consideration in exchange for its conveyance of the interior and exterior easements:
- a zoning change that eliminated authorization to develop residential condominium units within the shrine but also permitted development on the parking lot up to 650 feet, subject to a “view plane” restriction of 155 feet (a view plane restriction limits the height of buildings from a specified view point within Denver's city park and is meant to preserve the view of the Rocky Mountain Skyline from that view point), and
- the Denver Community Planning and Development Agency’s recommendation to the Denver Planning Board to approve a view plane variance (which variance was ultimately approved).
On its 2003 tax return, however, the LLC claimed a $7.15 million charitable deduction for its conveyance of the easements and made no adjustment for the consideration it received in exchange. At trial, the LLC conceded it had received the zoning change in exchange for its conveyance of the easements and argued that its deduction should be reduced by just over $2 million as a result. The LLC also asserted that the Planning and Development Agency’s recommendation to the Planning Board to approve a view plane variance was either not consideration received in exchange for the grant of the easements, or was consideration but had no real value. The Tax Court disagreed, finding that the Agency’s view-plane-variance recommendation was consideration and had substantial value. The court concluded that the LLC’s failure to identify or value all of the consideration received, or to provide any credible evidence to permit the court to accurately value all of the consideration received was fatal to the deduction.
In support of its holding, the Tax Court cited an earlier case, Pollard v. Comm’r, T.C. Memo. 2013-38, in which it sustained the IRS’s complete disallowance of a deduction claimed for the conveyance of a conservation easement because the easement was conveyed in exchange for the receipt of a subdivision exemption and the taxpayer did not establish that the value of the easement exceeded the value of that exemption.
The IRS argued that the LLC was liable for either the 40% gross valuation misstatement penalty or, alternatively, the 20% accuracy-related penalty for negligence or disregard of the rules or regulations.
Gross Valuation Misstatement Penalty
At trial, the IRS’s valuation experts asserted that the interior easement decreased the value of the shrine by only $400,000 and the exterior easement did not have any effect on the value of the shrine because of already existing local historic preservation restrictions. The court found, however, that the exterior easement was more protective of the shrine than local law—i.e., the LLC had decreased flexibility to modify the exterior as a result of the easement and Historic Denver more regularly monitored the property than local authorities. The court also inferred from the City of Denver's insistence that the LLC grant the exterior easement that the exterior easement had value to the City over and above the local landmark designation. Accordingly, the court found that the IRS failed to meet his burden of establishing that the value of the easements claimed on the LLC’s return (i.e., $7.15 million) exceeded 400% of the correct value of the easements.
Accuracy-Related Penalty for Negligence or Disregard of Rules or Regulations
The Tax Court agreed with the IRS that the LLC was liable for the accuracy-related penalty because it acted negligently or in disregard of the requirements of § 170 and the regulations. “Negligence,” said the court, is strongly indicated where a taxpayer fails to make a reasonable attempt to ascertain the correctness of a deduction that would seem to a reasonable and prudent person to be “too good to be true.” And a taxpayer acts with “disregard” when, among other things, he does not exercise reasonable diligence to determine the correctness of a return position.
The LLC conveyed the easements as part of a quid pro quo exchange but reported the conveyance on its 2003 return as a charitable contribution without making any adjustment for the consideration it received in exchange. The court found that the LLC acted negligently or with disregard because it did not make a reasonable attempt to ascertain the correctness of the deduction.
The LLC argued that it was eligible for the reasonable cause and good faith exception to the penalty because it relied on professional advice. The Tax Court disagreed. Although the LLC had consulted with a tax attorney regarding the conveyance, that attorney testified at trial that he had advised the LLC that it had to reduce the value of its deduction by the consideration received in the quid pro quo exchange. The Tax Court noted that it would be unreasonable for the court to believe that at the time of the contribution or at the time of filing the LLC’s return either the LLC or its advisers believed that the contribution of the easements was an unrequited contribution or that the consideration received had no value. Consequently, the LLC's disregard of the attorney’s advice was not reasonable and in good faith, and the LLC could not rely on the professional advice of the attorney to negate the penalty.
Nancy A. McLaughlin, Robert W. Swenson Professor of Law, University of Utah S.J. Quinney College of Law
Friday, June 27, 2014
The Chronicle of Philanthropy reports that the American Red Cross (“ARC”) is resisting disclosure of certain information sought by ProPublica. The latter has reportedly filed a public records request with New York State to determine how the charity raised and spent in excess of $300 million following Hurricane Sandy. The ARC is reported to have provided “some information about its Sandy-related activities to New York Attorney General Eric Schneiderman,” but is arguing for redaction of certain reported details on the grounds that they reveal trade secrets. The story on ProPublica’s web page explains that counsel for the ARC maintains that documents filed with the AG contain "internal and proprietary methodology and procedures for fundraising, confidential information about its internal operations, and confidential financial information."
Soliciting and expending funds in connection with major disasters can present some thorny legal issues (as several of us tax and nonprofit law scholars have discussed in our scholarship). In general, analyzing whether these issues pose a problem in any given case does require assessment of the type of information that ProPublica seeks. While privacy laws protecting individuals should certainly be observed, I would think the public interest better served by erring on the side of full disclosure.
Buried in an AP story primarily addressing the lost emails of Lois Lerner, the Washington Post reports that the government has been ordered to pay the National Organization for Marriage $50,000 in connection with its lawsuit alleging that the IRS leaked confidential information concerning the organization’s donors. The key paragraphs:
[A] federal court has ordered the government to pay $50,000 to a conservative group that says confidential information from its tax returns ended up being published by a political opponent.
The National Organization for Marriage, which opposes same-sex marriage, brought a lawsuit last year after private information about its donors appeared in 2012 on the website of the Human Rights Campaign, which supports gay rights. …
The payment was ordered Monday in a consent judgment issued by the U.S. District Court for the Eastern District of Virginia.
Thursday, June 26, 2014
Scheidelman v. Commissioner (Again)—Second Circuit Affirms Tax Court’s Holding that Façade Easement Had No Value
After four years of litigation and two appeals, in Scheidelman v. Comm’r, _ F.3d _ (2d Cir., 2014), the Second Circuit affirmed the Tax Court’s holding that a façade easement donated by Huda Scheidelman to the National Architectural Trust (NAT) had no value. The easement encumbers a townhouse in Brooklyn’s Fort Greene Historic District. It is unlawful to alter, reconstruct, or demolish a building in that district without the prior consent of New York City’s Landmarks Preservation Commission.
In the first case, Scheidelman v. Comm’r, T.C. Memo. 2010-151, Tax Court sustained the IRS’s complete disallowance of deductions totaling $115,000 that Scheidelman had claimed with regard to the easement donation. The court held that the appraisal obtained to substantiate the deductions was not a “qualified appraisal” because it failed to state the method and basis of valuation as required by Treasury Regulation § 1.170A–13(c)(3)(ii)(J) and (K). The appraiser had mechanically applied a diminution percentage to establish the value of the easement and failed to analyze any qualitative factors relating to the subject property.
Scheidelman appealed, and two years later, in Scheidelman v. Comm’r, 682 F.3d 189 (2d Cir. 2012), the Second Circuit vacated and remanded the case, holding that the appraisal was a qualified appraisal because it sufficiently detailed the method and basis of valuation. The Second Circuit explained
[f]or the purpose of gauging compliance with the reporting requirement, it is irrelevant that the IRS believes the method employed was sloppy or inaccurate, or haphazardly applied—it remains a method, and [the appraiser] described it. The regulation requires only that the appraiser identify the valuation method “used”; it does not require that the method adopted be reliable.
The Second Circuit also noted, however, that its conclusion that the appraisal met the minimal qualified appraisal requirements mandated neither that the Tax Court find the appraisal persuasive nor that Scheidelman be entitled to a deduction for the donation.
On remand, in Scheidelman v. Comm’r, T.C. Memo. 2013-18, the Tax Court found the preponderance of the evidence supported the IRS’s position that the easement had no value. The Tax Court determined that the appraisal Scheidelman obtained to substantiate the deductions was not credible for the same reasons it had determined that the appraisal was not a qualified appraisal—i.e., the appraisal involved the mechanical application of a diminution percentage and failed to analyze any qualitative factors relating to the subject property. The court also found that the valuation expert Scheidelman hired for trial was not credible, explaining
Ehrmann ignored studies suggesting a contrary result and adopted those supporting his client’s desired value. Ehrmann’s testimony had all of the earmarks of overzealous advocacy in support of NAT’s marketing program and, indirectly, [Scheidelman’s] tax reporting….
Expert opinions that disregard relevant facts affecting valuation or exaggerate value to incredible levels are rejected. . . . An expert loses usefulness to the Court and loses credibility when giving testimony tainted by overzealous advocacy.
Indefatigable, Scheidelman appealed again, and in Scheidelman IV the Second Circuit affirmed the Tax Court’s holding that the easement had no value. The Second Circuit first explained
‘[O]rdinarily any encumbrance on real property, howsoever slight, would tend to have some negative effect on that property's fair market value.’ But neither the Tax Court nor any Circuit Court of Appeals has held that the grant of a conservation easement effects a per se reduction in the fair market value. To the contrary, the regulations provide that an easement that has no material effect on the obligations of the property owner or the uses to which the property may be put “may have no material effect on the value of the property.” And sometimes an easement “may in fact serve to enhance, rather than reduce, the value of property. In such instances no deduction would be allowable.” (citations omitted)
The Second Circuit agreed with the Tax Court that the appraisal Scheidelman used to substantiate her deductions as well as the testimony of the valuation expert she relied on at trial were entitled no weight. The Second Circuit also noted that, in 2013, the U.S. District Court issued a permanent injunction barring Erhmann and his firm from preparing any further appraisals for tax purposes.
In support of its holding that substantial evidence supported the Tax Court’s conclusion that the easement had no value, the Second Circuit quoted the IRS’s valuation expert, who explained that “in highly desirable, sophisticated home markets like historic brownstone Brooklyn, the imposition of an easement, such as the one granted … does not materially affect the value of the subject property.” The Second Circuit also noted that the Tax Court “drew the fair inference that ‘preservation of historic façades is a benefit, not a detriment, to the value of Fort Greene property’” from the testimony of the Chairman of the Fort Greene Association (a witness for Scheidelman), who explained that the Fort Greene Historic District “actually has created Fort Greene to what it is today…. it's an economic engine for Fort Greene.” Finally, the Second Circuit found persuasive the fact that NAT had assured one of Scheidelman's mortgagors that
[a]s a practical matter, the easement does not add any new restrictions on the use of the property because the historic preservation laws of the City of New York already require a specific historic review of any proposed changes to the exterior of this property.
Scheidelman is but one in a string of cases in which deductions for donations of façade easements to NAT have been disallowed in full or in substantial part. Those cases include:
- Herman v. Comm'r, T.C. Memo. 2009-205
- 1982 East LLC v. Comm'r, T.C. Memo. 2011-84
- Dunlap v. Comm'r, T.C. Memo. 2012-126
- Graev v. Comm'r, 140 T.C. No. 17 (2013)
- Gorra v. Comm'r, T.C. Memo. 2013-254
- 61 York Acquisition, LLC v. Comm'r, T.C. Memo. 2013-266
- Kaufman v. Comm'r, T.C. Memo. 2014-52
- Chandler v. Comm'r, 142 T.C. No. 16 (2014)
NAT also was the subject of a 2011 Department of Justice lawsuit alleging that NAT engaged in abusive practices. The suit settled with NAT denying the allegations but agreeing to a permanent injunction prohibiting it from engaging in the practices.
Nancy A. McLaughlin, Robert W. Swenson Professor of Law, University of Utah S.J. Quinney College of Law