TEO Bulletin author Pamela Mann recently led Practicising Law Institute’s full-day Advising Nonprofit Organizations 2020 continuing legal education program. Presenters also included fellow TEO Bulletin author Ahsaki Benion and chief of the New York Attorney General’s Charities Bureau James G. Sheehan. The program examined federal and state laws and regulations affecting nonprofits, as well as new challenges and practical solutions for overcoming those challenges.

Click here to learn more about the program, which is also available to stream on-demand.

On December 20, 2019, the Taxpayer Certainty and Disaster Tax Relief Act of 2019 (the “Act”) was signed into law as part of a larger appropriations bill. Among other things, the Act repeals a provision of the Tax Cuts and Jobs Act of 2017 (the “TCJA”) that rendered a tax-exempt organization’s expenses related to qualified transportation fringe benefits taxable as unrelated business income.

Unrelated business taxable income, or “UBTI,” is defined as gross income derived by a tax-exempt organization from a trade or business, regularly carried on by it, the conduct of which is not substantially related to the performance of the organization’s tax-exempt functions. UBTI is generally taxed at a flat rate of 21%.

Under Internal Revenue Code (“Code”) § 132(f), “qualified transportation fringe” includes any of the following provided by an employer to an employee: transportation in a commuter highway vehicle in connection with traveling between the employee’s home and place of employment; any transit pass; parking on or near work premises; and any qualified bicycle commuting reimbursement. Prior to the TCJA, costs incurred by a nonprofit employer to provide qualified transportation fringe benefits were not taxable. In 2017, the TCJA amended the Code to add a new § 512(a)(7), which explicitly included expenses related to the following as UBTI of a tax-exempt employer: (a) the provision of qualified transportation fringe, (b) any parking facility used in connection with qualified parking, or (c) any on-premises athletic facility.

The change wrought by the TJCA meant that tax-exempt employers providing transportation fringe benefits or on-premises athletic facilities to employees were subject to a 21% tax on all related expenses, and they had to consider such additional cost in planning their benefit programs. In addition, some laws enacted by municipalities, including New York City’s Affordable Transit Act and Washington DC’s The DC Commuter Benefits Law, require for-profit and nonprofit employers to offer commuter benefits to employees, which may include qualified transportation fringe. Organizations in such jurisdictions had the added duty of ensuring that any adjustments made in response to new Code § 512(a)(7) were in compliance with applicable local law.
Section 302 of the Act repeals Code § 512(a)(7), once again excluding expenses related to qualified transportation fringe benefits from UBTI. That section retroactively applies to amounts paid or incurred as of December 31, 2017 (the effective date of the relevant provisions of the TCJA). Organizations that incurred tax under Code § 512(a)(7) in taxable year 2018 and/or 2019 may claim a refund of taxes paid by filing an amended Form 990-T Exempt Organization Business Income Tax Return and following the IRS guidance found here.

– A. Benion

Pursuant to IRS Rev. Proc. 2020-8, as of January 31, 2020, a Form 1023 Application for Recognition of Exemption Under Section 501(c)(3) of the Internal Revenue Code—which is used to apply for recognition of tax exemption as an entity described in § 501(c)(3)—may only be submitted electronically through Pay.gov, along with the required $600 user fee. According to the IRS, the change is intended to reduce errors, provide a more efficient application process, and improve processing time. Completed paper versions of Form 1023 (as revised 12-2017) will continue to be accepted and processed only during a 90-day grace period ending April 30, 2020.

Previously, only the Form 1023-EZ Streamlined Application for Recognition of Exemption (for eligible organizations with annual gross receipts not exceeding $50,000 and assets not exceeding $250,000) required electronic filing.

– Ahsaki Benion

On January 14, 2020, the New York Attorney General entered into an Assurance of Discontinuance (the “Settlement”) with PayPal Charitable Giving Fund (“PPGF”)—PayPal, Inc.’s charitable giving arm—to resolve issues raised during an investigation into PPGF’s 2016 giving campaign. The Settlement highlights the importance of adequate disclosure and vetting for third-party fundraising platforms that solicit charitable funds online.

PPGF is a 501(c)(3) nonprofit corporation that does business throughout the United States. It functions as a third-party fundraising platform that accepts contributions from individuals and then makes equivalent grants to charities selected by those individuals, at no cost to the donor or the charity. PPGF vets each selected charity before granting funds; if the charity does not meet PPGF’s vetting criteria, PPGF will grant the funds to a comparable charity that does meet such criteria. Prior to PPGF’s 2016 giving campaign, only charities that enrolled with PPGF, maintained a PayPal account, and satisfied PPGF’s vetting criteria (such charities, “Enrolled Charities”) were eligible to receive grants. A list of Enrolled Charities was accessible on PPGF’s website.

For its 2016 giving campaign, PPGF added charities that were not Enrolled Charities to the list of charities on its giving website (the “Cause Hub”). The added charities were on a list of 501(c)(3) charitable organizations provided by Guidestar USA, Inc. but were not enrolled with PPGF (such charities, “Unenrolled Charities”). After the addition of the Unenrolled Charities, a multistate group consisting of representatives of state Attorneys General, Secretaries of the State, and state consumer protection agencies from 23 states (such group, the “Multistate Group”) initiated an inquiry into PPGF’s disclosure and vetting practices.

In the spring of 2017, PPGF removed the listing of Unenrolled Charities from the Cause Hub to address the Multistate Group’s concerns, and PPGF fully cooperated with the Multistate Group in its inquiries. Ultimately, PPGF agreed to implement certain disclosure standards to ensure that donors have the information necessary to make informed decisions about their charitable giving.

Specifically, under the Settlement, PPGF agrees that it will:

  • make “unavoidable and prominent” disclosures that donors are making donations to PPGF and not to the donor’s selected charity, and PPGF will not use language implying that donors are making a direct donation to their selected charity. (Here, “unavoidable and prominent” means (a) the information is not included in an optional pop up window or on another page accessible by a link, and (b) the information must be located on a page that every donor must access prior to making a donation and in a position on that page that is in immediate proximity to a necessary field/button used by every donor)
  • make “unavoidable and prominent” disclosures to donors regarding fees charged for use of the PPGF platform, or the absence of such fees.
  • make “unavoidable and prominent” disclosures regarding the expected time frame in which grant funds will be disbursed to the selected charity.
  • make “unavoidable and prominent” disclosures that PPGF may redirect funds to a comparable charity under certain circumstances, and clearly describe such circumstances.
  • disclose that donors’ contact information is not shared with charities that are deemed ineligible to receive a grant.
  • notify donors when it redirects a donation to an organization other than the one the donor selected.
  • disclose whether the charity vetting process includes review for compliance with state charitable registration requirements.
  • ensure that charities listed on the Cause Hub are specifically identified as either Enrolled or Unenrolled, and explain what each designation means in practical terms.

PPGF must fulfill certain other requirements as part of the Settlement, including (a) providing biannual data to the Multistate Group regarding any redirection of grants to charities other than the ones selected by donors, and (b) making a $200,000.00 donation to the National Association of Attorneys General Charities Enforcement and Training Fund to cover costs associated with actions brought by state charities regulators and provide related training. The Settlement’s material terms are consistent with agreements entered into by PPGF and other entities comprising the Multistate Group.

In the wake of the Settlement, entities operating third-party fundraising platforms, and even charities that may receive funds via such platforms, should review  disclosure language to ensure that donors receive sufficient information and contributions are made as intended.

– Ahsaki Benion

New York’s “Stop Hacks and Improve Electronic Data Security Act (SHIELD Act)” (the “Act”) officially took effect on October 23, 2019. In pertinent part, the Act amends New York General Business Law (“GBS”) § 899 to expand the scope of “private information” covered under existing data breach notification provisions, to more broadly define what constitutes a “breach” of data security, and to add new data security requirements. The Act applies to all businesses that collect private information of New York residents, including nonprofits.

Breach Notification. Under the previous law, “private information” was defined as information that could be used to identify a person (“personal information”) in combination with a social security number; a driver’s license or non-driver’s identification card number; or a financial account or credit card number with an access code or password that would permit access to an individual’s account. The Act broadens the definition of “private information” significantly to include personal information in combination with (a) credit card and financial account numbers that can be used alone to access an individual’s account; (c) biometric information (e.g., fingerprints, voice prints, etc. used to authenticate an individual’s identity); and (c) a user name or email address in combination with a password or security question that would permit access to an individual’s online account.

Importantly, whereas the previous law defined a breach of system security as “unauthorized acquisition” of certain data, the Act expands that definition to include “unauthorized access” to such data. Businesses must disclose a security breach to any resident of New York state whose private information is believed to have been wrongfully accessed or acquired. Notably, the Act provides that notice is not required if exposure of private information occurs as the result of an inadvertent disclosure by a person authorized to access the information, and the business determines that exposure will not result in misuse of the information, or in financial (or emotional) harm to the affected person.

In addition to the previous notice specifications, notice must now include the telephone numbers and websites of the state and federal agencies that provide information regarding data breach response and identity theft protection. The Act also (a) increases the penalty from $10 to $20 for each instance of failed notification, with a maximum penalty of $250,000 (up from $150,000 previously), and (b) lengthens the time period during which the Attorney General may bring an action for violation of the notice provisions—up to six years from the date of the business’ discovery of the data breach, and longer if the business made efforts to hide the breach.

Data Security. The Act adds a new GBS § 889-bb, which requires businesses that own or license data that includes private information of New York residents to “develop, implement and maintain reasonable safeguards to protect the security, confidentiality and integrity of . . . private information.” A business will be deemed compliant with the Act if it implements a data security policy that requires:

  • Reasonable administrative safeguards (e.g., a designated employee to coordinate a security program; identification of internal/external risks; assessment of current safeguards; employee training in security practice and procedures; engagement of qualified service providers to implement safeguards)
  • Reasonable technical safeguards (e.g., assessment of risks in network and software; assessment of risks in information handling; system failure prevention, detection, and response; testing and monitoring of key controls and procedures)
  • Reasonable physical safeguards (e.g., assessment of risks of information storage and disposal; system intrusion prevention, detection, and response; protection against unauthorized use or access to data; disposal of private information after use)

Note that a “small business” (defined as one with less than 50 employees, less than $3 million in revenue during the previous 3 years, or less than $5 million in year-end assets) shall be deemed compliant with the Act’s data security requirements if the business has a security program with safeguards appropriate for its size and complexity, the nature and scope of its activities, and the sensitivity of the personal information it collects.

Businesses that already meet existing data breach notification or data security requirements mandated by other state or federal law may automatically be deemed compliant with the Act. Note also that the Act expressly does not create a private right of action; only the Attorney General is empowered to bring action for violations of its provisions.

The data breach notification provisions of the Act are effective as of October 23, 2019, and the data security provisions take effect March 21, 2020. All nonprofit organizations that collect private information of New York residents should consult legal counsel and review their existing policies and protocols to ensure compliance with the new requirements.

– Ahsaki Benion

A federal judge has invalidated a New York state Ethics Law requiring § 501(c)(3) and § 501(c)(4) tax-exempt organizations to publicly report their donors under certain circumstances.

Background. Organizations exempt from taxation under Internal Revenue Code (“IRC”) § 501(c)(3) (charitable organizations) are expressly prohibited from participating in any political campaign activity for or against a candidate for public office. Such organizations are permitted to engage in lobbying, but lobbying activity may not constitute a “substantial part” of their activities. By contrast, organizations exempt from taxation under IRC § 501(c)(4) (civic leagues or social welfare organizations) may engage in substantial lobbying, and may engage in some political activity so long as that is not their primary activity. Donations to § 501(c)(3) organizations are generally tax-deductible, while donations to § 501(c)(4) organizations generally are not. A § 501(c)(3) organization may make cash or in-kind donations to a § 501(c)(4) organization but it must ensure that its tax-deductible contributions are not used to fund lobbying.

In 2016, as part of an Ethics Law intended to address certain election and campaigning issues, New York enacted Executive Law §§ 172-e and 172-f (together, the “Provisions”). Section 172-e requires a § 501(c)(3) organization to disclose all donors who contributed over $2,500 if the 501(c)(3) itself makes an in-kind donation in excess of $2,500 to a § 501(c)(4) organization that engages in lobbying in New York. Section 172-f requires a § 501(c)(4) organization to disclose donors who contributed $1,000 or more if the 501(c)(4) expends more than $10,000 in a calendar year on communications made to at least 500 members of the public concerning the position of an elected official relating to any “potential” or pending legislation (unless the contributions are restricted to a segregated account that was not used to support such communications). According to New York’s Governor, the Provisions were intended to facilitate “[d]isclosure of political relationships and funding behaviors widely recognized to be influential, but which operate in the shadows.”

Legal Action. Citizens Union of the City of New York (“Citizens Union”) is a nonpartisan group that works to foster accountability and transparency in New York City and State government; it is a § 501(c)(4) organization with an affiliated § 501(c)(3) organization. In 2016, Citizens Union filed suit challenging the Provisions on the grounds that they unconstitutionally burden the First Amendment rights of free speech and association.

In Citizens Union of the City of New York et al. v. Attorney General of the State of New York (case no. 1:16-cv-09592, U.S. District Court for the Southern District of New York), the court evaluated the Provisions under the “exacting scrutiny” standard, which is applicable when considering content-neutral disclosure requirements challenged under the First Amendment. According to the court, “there is no question that public disclosure of donor identities burdens the First Amendment rights to free speech and free association.” Under exacting scrutiny, the Provisions are permissible only if there is a “substantial relation between the disclosure [requirements] and a sufficiently important governmental interest.”

As described by the court, the U.S. Supreme Court has recognized three governmental interests that may justify donor disclosure in the context of election campaigns despite the burden on First Amendment rights:

  • First, disclosure provides voters with information about where political campaign money comes from and how it is spent by a candidate; sources of a candidate’s financial support also alert voters to the interests to which a candidate is most likely to be responsive.
  • Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by publicly exposing large contributions and expenditures.
  • Third, recordkeeping, reporting, and disclosure requirements are an essential means of gathering the data necessary to detect violations of limits on campaign contributions.

In striking down § 172-e, the court asserted that there was no substantial relation between the requirement that the identity of donors to § 501(c)(3) organizations be publicly disclosed and any important government interest. It reasoned that other disclosure laws that have been upheld based on a showing that disclosures furthered an important government interest were drawn far more narrowly than § 172-e. Similarly, the court found that § 172-f unconstitutionally intrudes on donors’ rights to anonymously discuss and advocate on issues of public interest because it requires disclosure whenever a § 501(c)(4) organization engages in pure public issue advocacy. According to the court, § 172-f reaches a far broader swath of communications than did other lobbying- and election-related statutes that were previously upheld.

When Citizens Union initially challenged the law in 2016, the New York Attorney General agreed to a stay of enforcement, so the Provisions have never actually been enforced. We will provide an update if there are any further developments.

– Ahsaki Benion

Effective March 2019, § 174-b of the New York Executive Law was amended to add a new requirement that any solicitation by or on behalf of a charitable organization—including any solicitation by a professional fundraiser or professional solicitor—must include a statement of the New York Attorney General’s website address (www.charitiesnys.com) and telephone number ((212) 416-8686) where an individual can receive more information about the charity.

In August 2019, the Attorney General released guidance on the § 174-b disclosure requirements to assist charities in complying with the amended statute. Charitable organizations that are required to register with the Attorney General and file annual financial reports must adhere to the guidelines if they solicit contributions from persons in New York. Note that certain nonprofit organizations (including but not limited to religious organizations, certain educational institutions, and organization’s with contributions totaling less than $25,000 per year) are exempt from the requirements. Read the guidelines here.

The guidelines are not intended to serve as a substitute for legal advice; organizations should always consult legal counsel when planning or conducting any fundraising activity.

-Ahsaki Benion

In what may be a bellwether for future challenges to existing U.S. Treasury Regulations, on August 6, 2019 the United States District Court for the District of Minnesota in Mayo Clinic v. United States invalidated Treasury Regulation § 1.170A-9(c) on the grounds that the Treasury Department exceeded the bounds of its statutory authority when it was promulgated.

Background

Mayo Foundation is an tax-exempt § 501(c)(3) organization that is the parent of several hospitals, clinics, and the Mayo Clinic College of Medicine and Science, which is comprised of five medical schools. In 2016, the Mayo Clinic filed suit on behalf of Mayo Foundation (“Mayo”) seeking over $11 million in federal tax refunds. According to Mayo, the taxes were erroneously assessed because Mayo is a “qualified organization” that is not required to pay unrelated business income tax (“UBIT”) on passive income from debt-financed property. The Government contended that such passive unrelated business income was taxable because Mayo was not a “qualified organization” for purposes of the claimed UBIT exclusion.

Under Code § 170(b)(1)A(ii), an organization qualifies for the UBIT exclusion at issue in Mayo if it is

an educational organization which normally maintains a regular faculty and curriculum and normally has a regularly enrolled body of pupils or students in attendance at the place where its educational activities are regularly carried on.

The Treasury Department regulation interpreting that provision—Treasury Regulation § 1.170A-9(c) (the “Treas. Reg.”)—further provides that an organization is not included in the definition of “educational organization” unless “its primary function is the presentation of formal instruction” and “noneducational activities . . . are merely incidental to the educational activities.”

The Government and Mayo agreed that Mayo would qualify as an “educational organization” under the definition set forth in the Code if the Treas. Reg. was not applicable. However, according to the Government, the Treas. Reg. expressly excluded Mayo from the definition of “educational organization” because (a) Mayo’s primary purpose is health care, not education, and (b) its noneducational “health care” activities are not merely incidental to its educational activities. Mayo challenged the Treas. Reg.’s validity, arguing that it impermissibly added a requirement—namely, the primary function test—that Congress did not intend to include in Code § 170(b)(1)A(ii).

Decision

The court considered Code § 170(b)(1)A(ii) and the Treas. Reg. under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. to determine whether the regulation was entitled to deference. Under the two-step Chevron framework, courts and agencies “must give effect to the unambiguously expressed intent of Congress. If the intent of Congress is clear, that is the end of the matter.” If Congress has not directly addressed the precise question at issue and the statute is silent or ambiguous, only then will a court consider whether an agency’s regulation promulgated to address the ambiguity is based on a permissible construction of the statute.

As stated by the court, “the precise question at issue [in Mayo] . . . [was] whether Code § 170(b)(1)(A)(ii) is silent or ambiguous with respect to the primary-function and merely-incidental requirements in the regulation.” Because the Code subsection immediately following § 170(b)(1)(A)(ii) explicitly does include a primary function requirement (it defines the principal purpose or functions of a qualifying medical facility), the court determined that Congress had “unambiguously chose not to include a primary-function requirement” in Code § 170(b)(1)(A)(ii). According to the court,

when Congress imposes a particular requirement in one subsection of a statute but not in another—settled rules of statutory construction say that the absence of the requirement is generally to be considered a deliberate omission that must be respected.

Since it found that the Treasury Department did not have statutory authority to impose a primary-function requirement under the Treas. Reg., the court never even reached the second prong of the Chevron test (i.e., whether the Treas. Reg. was a permissible interpretation of the statute).

With the Mayo decision, organizations previously ineligible for the passive income UBIT exception at issue in the case may now qualify. In addition, the Mayo precedent has the potential to invite challenges to other existing Treasury Regulations, which could significantly impact tax administration. We will continue to monitor this case closely.

(Note: The Code § 170(b)(1)(A)(ii) at issue in Mayo generally describes a type of “educational organization” eligible to receive tax-deductible charitable contributions from individuals. Now that the Treas. Reg.’s primary function test has been invalidated, charitable contributions to such an “educational organization” are tax-deductible even if the organization’s primary purpose is not the presentation of formal instruction and noneducational activities are not merely incidental to educational activities. However, by definition, a charitable contribution may only be made to a corporation that is

organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or to foster national or international amateur sports competition . . . or for the prevention of cruelty to children or animals; . . . no part of the net earnings of which inures to the benefit of any . . . individual . . .

An educational organization described in § 170(b)(1)(A)(ii) must be qualified to receive a charitable contribution as defined above, regardless of the primary function test.)

-Ahsaki Benion

On August 12, 2019, Governor Andrew Cuomo signed into law S.6577/A.8421 (the “Act”), providing new workplace harassment protections for New York workers. While certain provisions of the previous law applied only to employers with four or more employees, the Act is applicable to all employers in the state—including nonprofits.

Effective October 11, 2019, the Act amends the Executive Law to considerably lower the bar for workplace harassment claims. Under the new law, it is an unlawful discriminatory practice for an employer

to subject any individual to harassment because of an individual’s age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, or because the individual has opposed [a discriminatory practice] or because the individual has filed a complaint, testified or assisted in any proceeding [relating to a discrimination complaint].

Harassment no longer needs to be “considered severe or pervasive” to constitute prohibited conduct. Instead, harassment constitutes an unlawful discriminatory practice if “it subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of [the] protected categories.” An employer may be liable even if an individual has not previously made a complaint about the harassment to such employer. As an affirmative defense, employers may assert that the alleged harassing conduct “does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”

In addition to changing the standard for actionable harassment claims, the Act:

  • Expands the prohibition against unlawful discriminatory practices to apply to domestic workers and non-employees (e.g., contractors, vendors, consultants, and volunteers) providing services in the workplace. (effective October 11, 2019)
  • Provides that victims of employment discrimination may be awarded punitive damages (under the previous law, punitive damages were awarded only in housing discrimination cases). (effective October 11, 2019)
  • Provides that victims of employment discrimination shall be awarded reasonable attorney’s fees (under the previous law, attorney’s fees could be awarded only in housing or sex discrimination cases in the court’s discretion). (effective October 11, 2019)
  • Prohibits employers from requiring an employee to submit to mandatory arbitration to resolve an unlawful discriminatory claim. (effective October 11, 2019)
  • Provides that an agreement to resolve a discrimination claim may not prohibit disclosure of facts related to such claim, unless confidentiality is the complainant’s preference. (effective October 11, 2019)
  • Prohibits an employer from requiring a current or potential employee to sign any agreement that would prevent disclosure of factual information related to a future discrimination claim unless it is clear that such agreement does not prohibit the individual from speaking with law enforcement, the equal employment opportunity commission, the state division of human rights, a local commission on human rights, or legal counsel. (effective October 11, 2019)
  • Extends the time period for filing a complaint of sexual harassment in employment from one year to three years after the alleged conduct. (effective August 12, 2020)
  • Requires employers to provide all employees—at the time of hiring and at each annual sexual harassment prevention training as required by law (see our related blog post)—a notice containing the employer’s sexual harassment prevention policy and the information presented at the sexual harassment prevention training. The notice must be provided in writing in English and in the language identified by each employee as his or her primary language. According to the Act, the New York State Department of Labor Commissioner’s templates of the model sexual harassment prevention policy and the model sexual harassment prevention training program will be made available to employers in various languages. If a translation in an employee’s primary language is not made available by the Commissioner, the employer may provide the English-language notice. (effective August 12, 2019)

The effective date of each provision of the Act is indicated above, but note that it will not apply to employers with one to three employees until February 8, 2020. All New York nonprofit organizations should consult legal counsel and review their existing policies and agreement forms to ensure compliance with the new requirements.

– Ahsaki Benion