IRS Releases Governance Check Sheet to be Used by EO Exam Agents

The Internal Revenue Service is at it again. The IRS recently released a Governance Check Sheet that its examination agents will use when examining charitable organizations (other than private foundations), along with a Guide Sheet providing instructions on how to use the Check Sheet. According to the IRS’s webpage for exempt organization governance issues, the Check Sheet “will be used by IRS’ Exempt Organizations Examination agents to capture data about governance practices and the related internal controls of organizations being examined. The data will be included in a long-term study to gain a better understanding of the intersection between governance practices and tax compliance.” These materials are in addition to the governance training materials previously released by the IRS.

Tax-exempt Purpose: Nonprofit Law Jargon Buster

There are 28 different exemptions under Code Section 501, the most popular of which is Section 501(c)(3). If the corporation plans to qualify for tax-exemption under Section 501(c)(3), the articles must limit the corporation’s activities to tax-exempt purposes. Tax exempt purposes include:

testing for public safety,
to foster national or international amateur sports competition, or
promote the arts, or for the prevention of cruelty to children or animals.

Caveat Emptor – Legal Document Preparers

In my practice representing nonprofit and tax-exempt organizations, there are often themes that emerge. Over the last few weeks I have had a spate of calls from would be nonprofits that paid either a nonprofit start-up “consultant” or a document preparation company to form their nonprofit and handle their IRS filings. In each case, the work product that made it to my office required substantially more work to fix than it would have taken to do properly the first time around. You get what you pay for, and sometimes, you pay dearly for what you get. Before hiring someone to help you with the legal and tax aspects of starting a nonprofit, make sure they are licensed to provide the type of assistance they are offering, have specific experience representing nonprofits, and are in fact representing you rather than helping you to commit malpractice on yourself.

Nonprofit Law Jargon Buster – Private Inurement v. Private Benefit

The private inurement rule and private benefit rules exist to ensure that charitable assets are preserved for the benefit of the public and not diverted to private use. This is a fundamental concept that distinguishes tax-exempt organizations from for-profits.

The rules originate in the language of Code Section 501(c)(3). Code Section 501(c)(3) contains the specific requirement that:

[N]o part of the net earnings of [the exempt organization] inures to the benefit of any private shareholder or individual . . . .

In addition, under the regulations, an organization is not treated as organized and operated for exclusively exempt purposes “unless it serves a public rather than a private interest,” Based on this provision, tax exempt status is not available to any organization if its net earnings inure to the benefit of private individuals “in whole or in part.”

In practice, the law distinguishes between different degrees of inurement depending upon who is being benefitted. The two types of inurement are referred to as “private inurement” and “public benefit.”

The Long Arm of Charitable Solicitation Law

Forty-one U.S. states as well as the District of Columbia and many local jurisdictions require some type of registration for charities trying to solicit funds. These laws create a patchwork of largely inconsistent laws that nonprofits must contend with. To add to the confusion, the jurisdictions that require registration have different definitions and standards regarding who must register, which documents are required, whether nonprofits must renew their registrations, and which government agencies process the registrations.

Collaboration Case Study – Acquisition Converted to Management Agreement

Often, in an effort to save money, clients come to their attorneys with a plan and simply ask them to “draft X.” Frequently, X isn’t the most appropriate solution. This case was one of those. The deal started out as an acquisition with the lawyer (me!) being kept at arm’s length when in fact more involvment early on would have quickly identified that this program was not a candidate for an acquisition, but rather a simple management arrangement.

Nonprofit Law Jargon Buster – 501(c)(3) Organizations and the Commerciality Doctrine

The well-meaning have been advising exempt organizations to “operate like a business” for years. If the organization is a Section 501(c)(3) organization, operating too much like a business can cost it its tax-exempt status due to the “Commerciality Doctrine.” Practically, the issue of commerciality usually arises when a tax-exempt organization engages in any endeavor for which a clear for-profit counterpart exists in the marketplace. Typical examples include publishing, consulting and sales of arts and crafts. Today, the Commerciality Doctrine is a threat to the increasingly popular movement toward social enterprises. Those that choose to organize as Section 501(c)(3) organizations should only do so after a thorough review of the Commerciality Doctrine.

Ripples from the Zambezi – Economic Development from the Bottom Up

In Ripples from Zambezi, the author, Ernesto Sirolli, turns the top down model of grand economic development on its head. Instead, his focus is on nurturing the passion and creativity of individuals.

The title comes from Sirolli’s early experiments in economic development in rural Africa, where he worked as a foreign aid worker for the Italian government. The beginning of the book details his experiences in Africa and the ideas that those failed experiments planted in his mind.

From that experience, he learned firsthand the damage traditional top down development models could do and made it his life’s work to find a better way to build local economies. He later discovered that the ideas that germinated in Africa applied to Western economies, too.
Sirolli’s approach builds on the theories of E.F. Schumacher, A.H. Maslow, Carl Rogers and others. The fundamental concepts underpinning Sirolli’s work include:

– A belief in the intrinsic goodness of human nature.

– If people don’t ask for help, leave them alone.

– There is no good or bad technology to carry out a task – only an appropriate or inappropriate one. Something big, modern, and expensive is not necessarily best; it all depends on the circumstances.

Top 10 Smart Moves Great Nonprofit CEOs Make

Asks Forgiveness, Not Permission. I receive calls from nonprofit CEOs who are struggling with their boards. I am also asked by boards to intervene when there is a an issue with the CEO. What I have learned is that great CEOs do not overly confer with the Board. Instead, great CEOs understand that it is their job to implement the Board’s strategy within the scope of the strategy, policies, and budget the Board has set. Too much “checking-in” can have the unintended consequence of inviting the board to micro-manage. Conversely, scribbling too far outside the lines of the board approved strategy, policies, and budget can get a CEO fired.