Practising Law InstituteADVISING NONPROFITORGANIZATIONS 2010 February 03, 2010 Presented By: Seth Perlman Perlman & Perlman, LLP 41 Madison Avenue, Suite 4000 New York, NY 10010 Ph: 212-889-0575 Fx: 212-748-8120 Seth@perlmanandperlman.com www.PerlmanandPerlman.com
TOPICS TO BE COVERED… • History of Fundraising • What Activities are Regulated • Role of Government • Regulatory Landscape • Changing Landscape, including the “new” 990 • Internet Fundraising Oversight • Cause Marketing and the Regulatory Environment
THRESHOLD QUESTIONS • Why is fundraising regulated? • How extensive is the wrongdoing in the charitable sector? • How much is attributable to fraudulent fundraising?
HISTORY OF FUNDRAISING REGULATION • In 1955, New York established the Office of Charitable Registration to administer new fund raising regulations. • Eventually over 40 other states established charity offices modeled after New York, in response to: • Growth of mass marketing technology • Proliferation of charities • Increased competition
PROLIFERATION OF CHARITIES • 501(c)(3) Entities Registered with IRS • __________________________________ • 1940: 12,500 • 1980: 320,000 • 1996: 654,186 • 2007: 1,128,367 • _________________________________ • 2007: IRS approved 68,278 new 501(c)(3) entities • (32 per hour/40 day week)
WHAT ACTIVITY IS REGULATED? SOLICITATION In short, solicitation is the affirmative act of asking for a gift or selling goods or services that will benefit a charitable organization. GOVERNANCE The new Form 990 puts the IRS in the position of regulating the governance of nonprofits.
GOVERNMENT VS. CHARITY • Conflicting interests of charities and the government results in increasing tension. • Government Interests • Ensuring assets are used for charitable purposes • Protecting citizens from fraud • Protecting donors’ privacy • Charity Interests • Disseminating information • Seeking funding unburdened by government restrictions
STATE REGULATION • Approximately 45 states (soon to be 47) have a statutory scheme to deal with nonprofit solicitations and use of nonprofit assets within their borders. • Registration and reporting requirements are imposed on charities, professional fundraising counsel, professional solicitors, and commercial co-venturers. • Each group is required to file annual registrations and financial reports and/or the IRS Form 990.
NONPROFIT ORGANIZATIONS • Include Section 501(c)(3) and (c)(4) organizations • 35-37 states require charities and other nonprofits to register prior to commencement of solicitations. • Also may include other nonprofit organizations asdefined by state law –tax exemption and deductibility is a function of federal tax law while the nonprofit status is a creature of state law.
PROFESSIONAL SOLICITORS • Directly solicit the general public on behalf of a charitable organization for a fee • Often have custody/control of the contributions received • Required to register in approximately 41 states, post a surety bond and file contracts with their nonprofit clients • Many states also require a pre-solicitation disclosure of professional status prior to making the request for a gift
PROFESSIONAL FUNDRAISING COUNSEL/CONSULTANTS • Help plan,manage, advise on or produce and design solicitations to the general public for a fee • Do not make the solicitations or have custody or control of contributions • Required to register in 26 states and post bonds in a few
COMMERCIAL CO-VENTURERS • As part of a sales promotion, a commercial co-venturer uses the charity’s name to sell its products or services and makes a charitable donation based on the sales. • Registration required in: Maine, Massachusetts and Alabama (Hawaii?) • 20 other states regulate the activity but do not require registration
EXEMPTIONS • Churches and in most states - Religious Organizations • Educational Institutions • Hospitals • Investment advisors,lawyersand accountants • Organizations raising less than $25,000 • Organizations for which solicitations limited to membership • Volunteers soliciting for the benefit of a named individual • Bona fide employees or volunteers
SAMPLE CONTRACT PROVISIONSWITH OUTSIDE FUNDRAISERS • Record retention for 3 years • Right to rescindby charity in NY and CA • Gross collections delivered to charity • Donor list owned by charity required (in some states) • Description of purposes of the campaign, services to be provided, and calculation and basis for the fee • Signature by two officials, including one director or trustee, of the charity
STATE LEGISLATIVE TRENDSPrimary Focus Areas • Financial Reporting • Registration and Reporting • Anti-Terrorism • Gaming • Disclosure • Annuity • Property Tax • Vehicle Donation • Do Not Call/Do Not Fax • Miscellaneous
OTHER GOVERNMENT REGULATORY AGENGIES • Internal Revenue Service • Postal Service • Federal Trade Commission • State Trade Commissions • County and Municipal Registration Offices
IRS: CHANGE IN PRIORITIES • “After years in which our energies have • been directed to customer outreach and • education, with minimal effort on • enforcement, we are re-balancing by • elevating enforcement to the top of our agenda…” • -Steve Miller, Tax Exempt Division
THE REVISED 990: KEY OVERALL CHANGES • New format: Core Form with Schedules A – R • Disclosure of more detailed information • Compensation • Governance • Financial Information • New first page includes summary of activities/governance, revenue, expenses, and net assets
THE REVISED 990:GOVERNANCE POLICIES • Conflict of Interest Policy • Gift Acceptance Policy • Whistleblower Policy • Executive Compensation Policy (for key employees, board members and officers) • Joint Venture Policy • Record Retention Policy • Form 990 Review Policy • Policy Governing Local Branches, Chapters and Affiliates
THE REVISED 990: SCHEDULE G - INFORMATION ON FUNDRAISING OR GAMING ACTIVITIES • Threshold Triggers: $15,000 or more in professional fundraising services, fundraising events income, or gaming events • Must list 10 highest paid fundraisers compensated $5,000 or more pursuant to written or oral agreements during the fiscal year • Includes disclosure of the “gross receipts from activity” performed by each fundraiser and the “amount paid to fundraiser” • Requires filing organization to list expenses (e.g. printing costs) separately in Schedule O, if possible
THE REVISED 990: SCHEDULE G - INFORMATION ON FUNDRAISING OR GAMING ACTIVITIES • Must “list all states in which the organization is registered or licensed to solicit funds or has been notified it is exempt from registration or licensing” • Must include a revenue and expense breakdown for the two largest fundraising events with gross receipts greater than $5,000 and a summary for all other events with gross receipts greater than $5,000 • Must include a revenue and expense breakdown for gaming events if gross income from gaming activities exceeds $15,000 • Requires disclosure of other information related to gaming including the states where the organization performed the activity and whether the organization was licensed in each state
FUNDRAISING IN CYBERSPACE Jurisdictional questions affecting nonprofit online activities: • Whether a state court has the power to adjudicate claims against an organization for its conduct on the internet • The extent of statutory authority of state or federal regulatory agencies
STATE JURISDICTION: ONLINE SOLICITATION • State must have“minimum contacts”with organization. • The organization mustpurposefully availitself of the privilege of doing business in the state. • The cause of action/regulation must relate to defendant’s activities within the state. • The exercise of jurisdictionmust be reasonablein light of the various interests at stake. • Long-arm statutesdetermine whether the state has jurisdiction over internet conduct of out-of-state organizations.
THE CHARLESTON PRINCIPLES Advisory principles adopted by NAAG/NASCO to clarify the applicability of state charitable solicitation regulations to internet fundraising. These apply to: • Entities domiciledwithin the state. • Out-of-state entities whosenon-internet activitieswould require registration in the state. • Out-of-state entities that solicit through an interactive or non-interactiveweb site andspecifically target personsphysically locatedin the state or receive contributions from the state on arepeated andongoing, or substantial basisthrough or in response to the web site solicitation.
FEDERAL TAX ISSUES: NONPROFIT USE OF INTERNET • To maintain its 501(c) (3) status, a nonprofit must meet an organizational test and an operational test. • Organizational Test: Organizing documents must limit the purposes of the organization to one or more exempt purposes, and must not authorize the organization to engage more than insubstantially in any activities which are not in furtherance of their exempt purposes. • Operational Test: Organization must be deemed to operate “exclusively” for its specified exempt purposes. • Danger of Substantial Internet Activities • Nonprofits should ensure that internet revenue-generating activities do not become substantial in relation to their activities taken as a whole, unless those activities are primarily related to the nonprofit’s exempt purposes.
FEDERAL TAX ISSUES: UBIT • Tax Liability: A nonprofit might be liable for tax on its unrelated business taxable income. • Includes income from a trade or business, regularly carried on that is not substantially related to the organization’s exempt purpose or function except to the extent that the organization benefits from the profits derived from the activity. • Activities that could trigger UBIT • Hyperlinks and Banner Exchanges • Advertising v. Corporate Sponsorship • Merchandising
CAUSE RELATED MARKETING REGULATION • Definition: A commercial marketing partnership between a business and a nonprofit entity to market an image, product or service linked to a social cause or issue, for mutual benefit. • Many state regulations protect against potential consumer fraud or deception and to ensure that the funds raised are used for the charitable purposes as advertised.
CAUSE RELATED MARKETING REGULATION • Advance registration for both the for-profit is required inMaine, Massachusetts and Alabama. Hawaiias of July 2008 requires the for-profit to file the contract. • About 20 other states regulate campaigns in some manner. • Registration typically includes filing a registration statement, paying a filing fee and posting a bond. • States may also require: • a written contract, a final accounting or closing statement, certain disclosures in any marketing campaign, and maintaining books and records related to the co-venturer for a specified number of years.
CAUSE RELATED MARKETING REGULATION State Specific Requirements • Connecticut requires a written contract from the commercial co-venturer. A copy of the contract must be filed at least 10 days prior to the start of the charitable sales promotion in the state. • California requires that the designated funds be transferred to the charity at certain intervals throughout the campaign. • New York requires that the commercial co-venturer provide the charity with an interim report, at least annually, for any sales promotions lasting longer than one year. • New Jersey recently passed legislation requiring every co-venture to be pursuant to a written contract, which must contain a provision clearly and conspicuously stating that the parties are subject to the Charitable Registration and Investigation Act.
OTHER STATE ISSUES • Federal and State Cooperation • FTC pipelineused by regulators to track problems in other states. • AICPA SOP 98-2 – Joint Cost Allocation reviews • State review of 98-2 allocations • BBB Wise Giving Alliance review of 98-2 allocations • Recording value of in-kind gifts • Media in-kind as tangible property