Tag Archives: 501(c)(3)

Pink October: Be Careful That Giving Does Not Cause You Grief

For many years now, the arrival of October, which has been dubbed “Breast Cancer Awareness Month,” has been accompanied by an onslaught of pink products being sold to benefit various breast cancer charities. This practice of selling products or services to benefit a charity (often referred to as a “commercial co-venture”) has become increasingly popular among business owners—in addition to the philanthropic goal of donating to a worthy cause, the use of the charity’s name will also often result in an increase in sales for the company. Because these partnerships involve claims made to consumers regarding the recipient, and use, of the funds, many states have begun to regulate commercial co-ventures to ensure that accurate information is provided to consumers and that the money is ultimately used in the manner advertised.

Unfortunately, there is little uniformity among the regulations of the various states. For example, some states require a written contract with the charity specifying exactly how the donation will be calculated. In some cases, this contract must be filed with the state. Other requirements may include registration with the state and furnishing financial statements to the charity and/or the state. In each case, the regulations across the states differ with regard to whose responsibility (either the for-profit company or the non-profit company) it is to ensure that these requirements are satisfied. Adding to the complexity is the fact that many sales involve the internet and interstate commerce, so commercial co-venturers may unintentionally, and unknowingly, subject themselves to the regulations of multiple states.

Entering into a commercial co-venture is a noble, but complicated, endeavor. If you are considering entering into a commercial co-venture, you should take steps to ensure that you are complying with all applicable laws.  Some best practices include:

  • Entering into a written agreement that grants a license to use the charity’s name in connection with sales;
  • Including an honest disclaimer of the amount being donated (including any minimums or maximums) in advertisements and on the product;
  • Keeping a detailed accounting of sales during the promotion; and
  • Consulting with a lawyer to confirm all state-specific requirements are met.

Elizabeth M. Stamoulis
estamoulis@williamsparker.com
(941) 552-5546

IRS Confirms Advantages to Domesticating Instead of Merging when Relocating a Foundation

When families with foundations relocate to Florida, they oftentimes want to relocate their foundations too. There are several different structures for accomplishing the relocation (i.e., change in state of domicile) of a foundation or other non-profit corporation. For a variety of reasons, the best structure is oftentimes a domestication, which is also sometimes referred to as a “conversion” in jurisdictions outside Florida.

In a recent ruling, the Internal Revenue Service confirmed some of the advantages to using a state law conversion, especially when compared to a merger. The ruling concludes that a non-profit corporation that changes its domicile from one state to another by undergoing a state law conversion does not need to file a new application for tax exemption (Form 1023) and can keep the same taxpayer identification number. These benefits would be obtained in Florida by undergoing a domestication. The ruling also confirmed that this treatment would not apply if a non-profit corporation changed its domicile by forming a new non-profit corporation in the new state, and merging the non-profit corporation from the old state into the new non-profit corporation. In the case of a merger, the old non-profit corporation would cease to exist, and the new non-profit corporation would have to obtain a new taxpayer identification number and seek tax-exempt status by filing a new application (Form 1023).

A link to the ruling is here:
www.irs.gov/pub/irs-wd/201446025.pdf

Michael J. Wilson
mwilson@williamsparker.com
941-536-2043

Florida Charities Subject to New Conflict of Interest and Financial Reporting Obligations

Amendments made during the 2014 Legislative Session to the Florida Solicitation of Contributions Act (the “Act”), and which became effective July 1, 2014, increase the oversight and regulation of charitable organization, sponsors, professional fundraising consultants, and professional solicitors.  The Act generally regulates certain persons and organizations conducting solicitation activities.  Among the many changes to the Act are:

  1. Conflict of Interest.  Charities subject to the Act are now required to adopt a conflict of interest policy for transactions between the charity and certain related parties, such as directors, officers, and trustees of the charity.  These persons must annually certify that they are in compliance with the conflict of interest policy, and a copy of such annual certification must be submitted to the Department of Agriculture and Consumer Affairs (the “DACA”) along with the charity’s annual registration statement provided to the DACA.
  2. Annual Financial Statements and Reports.  Charities subject to the Act previously could elect to include audited financial statements with their annual DACA registration statement.  However, the new law now requires most charitable organizations to file a tax return and financial statements.
  3. Supplemental Information.  Charities with more than $1 million in total revenue and that spent less than 25% of their total annual functional expenses on program services costs must file supplemental information with DACA regarding the funding of administrative functions, including salary and travel expense information, identifying the name and sum paid to all employees, consultants, and service providers in excess of $100,000, and reporting transactions between the charity and officers, directors, and trustees (including immediate family members and related entities).

An article on the recent amendments to the Act can be found here:
Amemdments to Chartible Solicitations Act 2014

Michael J. Wilson
mwilson@williamsparker.com
941-536-2043