Late last year, the Internal Revenue Service (“IRS”) issued a letter ruling, PLR 201446025, providing that, in certain instances, a nonprofit corporation exempt under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and incorporated in State A was not required to file a new application for tax-exempt status (IRS Form 1023) when it changed its domicile to State B by filing “Articles of Domestication” in State B and “Articles of Conversion” in State A.
In the ruling, the law of State B stated that the corporation’s filing of “Articles of Domestication” would not affect its original incorporation date. The law of State B also stated that the corporation would be considered the same corporation as the one that existed under the laws of State A, the state in which the corporation was previously domiciled. Similarly, the governing law of State A stated that following the corporation’s filing of “Articles of Conversion,” the corporation would continue to exist without interruption and be able to maintain its same liabilities and obligations.
Proskauer’s 19th Annual Trick or Treat Seminar was held on Friday, October 31.
The Seminar discussed:
- Charitable giving techniques
- Labor and employment issues with using volunteers and interns
- Recent developments in employee benefits
In her introductory remarks, Amanda Nussbaum discussed recent tax developments, including the development of IRS Form 1023-EZ, the process for reinstatement of tax-exempt status, and the proposed regulations under Section 501(c)(4), and introduced the presenters. Continue Reading
Our work on behalf of our client, Angkor Hospital for Children (“AHC”), in Siem Reap, Cambodia, reached a milestone with a New York Supreme Court order on September 15, 2014, transferring all the assets from a New York not-for-profit organization, Friends Without a Border (“FWAB”), to a Hong Kong company limited by guarantee, Angkor Hospital for Children Limited (“AHC HK”), established for charitable purposes.
AHC, located in Siem Reap, Cambodia was founded by photographer Kenro Izu in gratitude for the inspiration he received from the country’s ancient monuments, which he captured in his photographic series “Light Over Ancient Angkor.” Being Cambodia’s first teaching hospital, one of only two in the country, AHC draws patients who suffer from serious illness and often from acute malnutrition as well. They travel for hours, or even days, usually from rural areas, seeking higher level care that cannot be found in their own communities. AHC not only provides the neediest of these patients with free treatment, but also reimburses their travel costs in order to ensure that they will not hesitate to seek care when it is needed. AHC has also established a satellite clinic in the district town of Sotnikum in order to reach a larger number of poor children in the rural communities. Between AHC and the satellite clinic, over 150,000 children are treated each year.
The Advisory Committee on Tax Exempt and Government Entities (“ACT”), an IRS advisory panel, made several recommendations on issues relating to unrelated business taxable income (“UBTI”) in its annual report to the IRS (the “Report”). In recent years, the IRS has focused on UBTI reporting for tax exempt organizations; issues relating to UBTI reporting were addressed in Colleges and Universities Project Final Report, which was released in April last year. In light of the IRS’ increased focus on UBTI reporting, ACT selected UBTI as a focus for its annual project.
The rollout of the New York Nonprofit Revitalization Act of 2013 (the “Revitalization Act”), effective July 1, 2014, is causing challenges for many New York charities as the compliance date approaches. For more information on the challenges resulting from the rollout of the Revitalization Act, click here. For more coverage on the Revitalization Act, click here.
A New York court has held that the State’s regulatory limits on executive compensation and administrative expenses for entities that receive state funds unconstitutionally exceed proper regulatory authority. The regulations, which implemented a 2012 executive order by Governor Andrew Cuomo and went into effect on July 1 of last year, were promulgated in substantially similar form by thirteen different New York State agencies. Although other plaintiffs have challenged the regulations, this is the first time a court has held that they are unconstitutional.
On April 9, in Agencies for Children’s Therapy Services, Inc. v. New York Department of Health, the Nassau County Supreme Court held that the Department of Health (“DOH”) “strayed from the administrative into the legislative field” in promulgating the regulations, which, among other things, prohibit the use of more than $199,000 in State funding to compensate certain executives and employees of entities that receive at least 30 percent of their overall in-state revenues from the State. Using the factors identified in the New York Court of Appeals’ holding in Boreali v. Axelrod, 71 N.Y.2d 1 (1987), to determine whether DOH “had usurped the role of the legislature in making public policy assessments,” the Supreme Court concluded that: Continue Reading
The IRS recently issued Notice 2014-4 (the “Notice”), which provides interim guidance for Type III supporting organizations seeking to qualify as functionally integrated by supporting governmental organizations. In December 2012, the IRS issued final and temporary regulations that, among other things, set forth the requirements for an organization to qualify as a functionally integrated Type III supporting organization. However, these regulations reserved Section 1.509(a)-4(i)(4)(iv) to provide additional guidance on the requirements for qualifying as a functionally integrated by supporting a governmental supported organization.
A supporting organization, described in Section 509(a)(3) of the Code, is an organization that supports one or more public charities (the “supported organizations”). A Type III supporting organization is “operated in connection with” one or more supported organizations. Under the Pension Protection Act of 2006, a Type III supporting organization that is “non-functionally integrated” must pay a certain amount to its supported organization, while a Type III “functionally integrated” supporting organization does not have any payout requirement. Continue Reading
Tax-exempt organizations that have had their tax-exempt status automatically revoked because of failure to file required annual returns for three consecutive years can follow new procedures for seeking reinstatement of their tax exemptions. The IRS released these procedures in Revenue Procedure 2014-11 on January 2, 2014. The Revenue Procedure, which is the first IRS guidance on this topic since 2011, outlines three procedures that organizations may use to apply for reinstatement.
First, under a “Streamlined Retroactive Reinstatement Process,” small organizations eligible to file a short form (Form 990-EZ) or postcard return (Form 990-N) may have their tax-exempt status retroactively reinstated to the date of revocation, provided that they have not previously had their exemptions automatically revoked. Under this procedure, organizations must complete and submit Form 1023 (Application for Recognition of Exemption Under Section 501(c)(3)) or Form 1024 (Application for Recognition of Exemption Under Section 501(a)) not more than 15 months after revocation.
Under the Not-for-Profit Corporation Law (“NPCL”) it is relatively clear that (i) any committee with corporate authority must be comprised only of trustees, and (ii) committees must be appointed by the board, and not, for example, by the chair (other than special committees). (The foregoing may not apply if otherwise provided by the certificate of incorporation.)
The NPCL currently distinguishes between (i) the executive committee and other standing committees, on one hand, and (ii) special committees, on the other hand.
Executive and standing committees must be appointed by a majority of the entire board pursuant to Section 712(a) which provides, in part, that “the board, by resolution adopted by a majority of the entire board, may designate from among its members an executive committee and other standing committees, each consisting of three or more directors, and each of which, to the extent provided in the resolution . . . shall have all the authority of the board, except . . . .” (Emphasis added.)
The New York Non-Profit Revitalization Act of 2013 (the “Act”), which was passed by the New York State legislature in June, was signed into law by Governor Andrew Cuomo last week. The Act seeks to modernize the New York Not-For-Profit Corporation Law (the “NPCL”), and is the first major overhaul of the NPCL in four decades.
The Act goes into effect on July 1, 2014.
Details of some of the changes to the NPCL include:
• In a critically important victory for common-sense corporate governance, notices and consents under the NPCL may be sent via e-mail and fax.
• Instead of defining not-for-profit corporations as Type A, B, C, or D (a classification system that has bedeviled New York lawyers for years), such entities will be simply “charitable” or “non-charitable.” Former Type-A corporations will be non-charitable, while all others will be charitable. Charitable purposes are defined as “charitable, educational, religious, scientific, literary, cultural or for the prevention of cruelty to children or animals.”
• The New York Executive Law requires submission of audit reports to the Attorney General for entities registered to solicit and collect funds for charitable purposes. The new law raises the gross revenue thresholds for such audits over time. Starting on July 1, 2014, certified audits will be required for those entities with revenue and support in excess of $500,000. The threshold will be raised to $750,000 as of July 1, 2017 and $1 million as of July 1, 2021. Continue Reading