New IRS Memo on Shared Websites

Download: Nonprofit Law Podcast #52 (mp3, 10:20)

Shownotes

Intro

Your guide to the laws impacting nonprofits
Shownotes at nplawcast.com
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501(c)(3)/501(c)(4) Shared websites

• On February 20th, the IRS released T.A.M. 200908050
• Arguably a stricter stance at affiliated 501(c)(3)-501(c)(4) entities sharing websites when the 501(c)(4) is engaged in political activity that is prohibited for 501(c)(3)s.
• What we’ve always thought
  • Caveat – the IRS rarely gives a lot of spot-on advice, so “what we’ve always thought” is based on educated conjecture based on existing precedent
  • 501(c)(3)s and affiliated 501(c)(4)s can share the same website so long as corporate formalities were followed.
  • The (c)(4) can be on the (c)(3)’s website, but there had to be some kind of way for the (c)(4) to reimburse the (c)(3) for using that space.
  • The (c)(4) also had to be the entity making the communications as well.
• The IRS in this T.A.M.
  • The entities involved here had the (c)(4) reimbursing the (c)(3) for the space, but the (c)(3)’s logo and copyright information were splashed all over the (c)(4) page content.
  • That was a compelling factor for the IRS… more compelling than which entity paid for the communications that endorsed candidates and included non-(c)(3) allowable candidate questionnaires.
• Where does this leave us?
  • It does not appear that the IRS is closing to door to shared sites, but it is clear that details matter beyond which group cuts the check for which content.
  • The safest thing would be separate websites altogether – and these days, it’s certainly less of a cost issue to maintain 2 domain names and 2 design schemes than in year’s past.
  • I suspect, although it’s not 100% clear from the T.A.M., that the (c)(3) and (c)(4) could share a domain hosting package so long as they split the costs, and maintain separate websites with separate communications.
  • Linking between the two should still be acceptable under earlier law, but it cannot rise to the level of campaign intervention, so the links are best left as, “we have an affiliated organization and you can read more about that work here.”

Resources

My post at the nonprofit law blog

Alliance for Justice (note, AFJ has a free conference call on the topic this Tuesday, March 10)

Caplin & Drysdale

IRS TAM 200908050 (Feb 20, 2009)(PDF, via Caplin & Drysdale)

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This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
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When is a person acting on their own versus acting on behalf of their organization?

- Joining a nonprofit as a director or a staff member doesn’t take away your individual rights
- Individuals can do things that are otherwise forbidden… donate time/money to campaign, etc.
- General rule – so long as an organization’s financial resources, facilities, or staff are not used, the organization is not going to be beholden to the individual acts of its staff, officers or directors

When do the actions become attributed to an organization?

- Principles of agency are used… if the person acts as if they have power, and they actually do have the power, the IRS will usually consider the action that of the organization
- Actions of individuals that weren’t ok’d by the group, but were later “implicitly ratified.” (i.e. Organization found out about the actions and did not disavow them)

Tips & Best practices

- Have a policy in place on use of organizational resources
- Encourage use of disclaimers for individuals working on non-organizational endeavors (i.e. “organization shown for identification purposes only”)

Resources

Election Year Issues (pp. 363-365) – IRS CPE Text
Election Year Activities for Section 501(c)(3) Organizations: Frequently Asked Questions – McDermott Will & Emery
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nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
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Check out the new website

New adds include a searchable database of all shows. If any links are a mess, drop me a line.

Change comes to DC – What are the plans for nonprofits?

Resources – look for something akin to the bailouts in the for profit sector, although the focus will be in the form of a newly formed Social Investment Fund Network – federal seed money leverages private sector funding

Tax law changes – any tax increases on higher income Americans could (possibly… depending on whom you ask) enhance the incentives to make charitable donations

Scrutiny – Sen. Charles Grassley (R-IA) and Sen. Max Baucus (D-MT) of the Senate Finance Committee have been poking around the nonprofit sector for years. Sen. Grassley in particular has been the most interested in creating additional regulatory hoops for nonprofits to jump through.

Resources

Nonprofit Law Prof Blog

Obama/Biden website

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Need more than the podcast? Tim-Mooney.com and Beyond the Podcast at nplawcast.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
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How you can pick up clues on the type of nonprofit you hear about in the news

This show is all about figuring out the type of nonprofit
A recent article on David Brock’s new organizational involvement spurred this:
“Brock wouldn’t detail Progressive Media USA’s strategy, and stressed that – as required by his group’s nonprofit status – the spending would be on a mix of direct electoral politics and issue ads with no direct connection to the race.” (Politico/CBSNews.com)
What type of nonprofit?
501(c)(3)? Check out their website… do they allow for charitable deductions for donations? Does the solicitation page specifically say contributions are NOT deductible?
Deductible? 501(c)(3)… likely a public charity
If not… keep looking for more clues!
Does the organization engage in ALL election activity supporting or opposing a candidate?
Probably a 527
Does it do mixed advocacy – some supporting or opposing a candidate and some not?
Probably a 501(c)(4)… Progressive Media USA might event have both a (c)(4) and an affiliated 527, so it’s not always as easy to pick out everything from one source!

Little clues here in there can lead you find out without relying on the cheat (Guidestar or a personal visit to the offices!)

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Need more than the podcast? Tim-Mooney.com and Beyond the Podcast at nplawcast.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

My Top 6 Resources
This week is all “resource time” here on the podcast – my top 6 resources – 3 sites in two categories

Operational information – excellent resources for how to get things done right
Guidestar
CraigsList Foundation
BoardSource

Infrastructure organizations – operational guidance plus representation of your interests
Alliance for Justice – Nonprofit Advocacy Project and Foundation Advocacy Initiative
National Council of Nonprofit Associations (NCNA) and your state nonprofit association
Independent Sector

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Sign up for the free NLP newsletter… every week get the shownotes and resources sent to you by email, plus get additional free content on the laws impacting nonprofits. Go to nplawcast.com/newsletter for more info and to sign up.
Need more than the podcast? Tim-Mooney.com and Beyond the Podcast at nplawcast.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

News & Notes
- From the Nonprofit Law Blog (tim-mooney.com/lawblog)
- Senate deepens financial review of television ministries – NBC is reporting that the Senate Finance committee is renewing its demands for certain churches to provide detailed financial information. The letters sent today are a follow-up to letters sent last year to a virtual who’s who of large televangelist ministries, including Benny Hinn and Kenneth Copeland.
- IRS reaches out to charities to aid in economic stimulus – The IRS is encouraging various partners and stakeholders such as charities, churches and governmental organizations to assist in efforts to reach out to those Americans who may be eligible for the 2008 economic stimulus payment but who normally have no requirement to file a tax return. People who receive certain Social Security, Veterans Affairs, Railroad Retirement or wages from earned income or combat pay may be eligible and not know it.

Resources
Guidestar – Joining a Nonprofit Board in a Post-Enron World
MN Council of Nonprofits – Roles and Responsibilities of the Nonprofit Board
BoardSource – The Nonprofit Board Answer Book

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Sign up for the free NLP newsletter… every week get the shownotes and resources sent to you by email, plus get additional free content on the laws impacting nonprofits. Go to nplawcast.com/newsletter for more info and to sign up.
Need more than the podcast? Tim-Mooney.com and Beyond the Podcast at nplawcast.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

News & Notes
- Nonprofits and Elections: Balancing Personal Versus Organizational Activity on-demand video screencast is available now at nplawcast.com/beyondthepodcast.
- Newsletter subscribers… next week I’ll be releasing a free screencast on filling out the Form 990-N. If you’re not a subscriber, sign up at nplawcast.com/newsletter.

What triggers an audit?
- To determine which organizations should be targeted, experienced specialists analyze information from Forms 990 and other sources.
- This analysis will usually result in the selection of a group of returns for examination or compliance check.
- EO also reviews media reports and receives complaints from the general public and Congress about potential non-compliance by exempt organizations.
- After confirming the information, and when appropriate, these organizations may be selected for examination or to receive a compliance check. For details on how EO handles complaints about exempt organizations, see Fact Sheet 2008-13. (It goes to the Dallas field office, because Texans know how to investigate nonprofits, presumably?)
- Regardless of the process used to select returns, EO does not presume that an organization is violating the tax laws before it begins the examination or sends a compliance check letter.

Resources
IRS: FS 2008-14

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Sign up for the free NLP newsletter… every week get the shownotes and resources sent to you by email, plus get additional free content on the laws impacting nonprofits. Go to nplawcast.com/newsletter for more info and to sign up.
Need more than the podcast? Tim-Mooney.com and Beyond the Podcast at nplawcast.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law

Download: Nonprofit Law Podcast #32 (mp3, 9:48)

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

News & Notes
- Recommended blog: a great source of nonprofit news is The Chronicle of Philanthropy‘s Philanthropy Today. The Chronicle is a subscription service (and well worth it) but this is a free source of news from the Chronicle. I have it in my Google Reader so I get the stories delivered as soon as they are posted.
- Nonprofits and Elections: Balancing Personal Versus Organizational Activity on-demand video screencast is available now at nplawcast.com/beyondthepodcast.

The “L” word

- Yes, nonprofits can lobby
- Yes, there are restrictions ranging from the substantial (private foundations) to the minimal (registration requirements for all)
- Lobbying has a legal definition – there are many ways an organization can advocate (sometimes strongly) without it counting as lobbying
- The basic rundown
- Private foundations are essentially prohibited from lobbying, BUT there are many ways to visit legislators and educate (tax law)
- Public charities are limited in the amount of lobbying they can engage in, but the amount allowed is surprisingly high for some (tax law)
- Other 501(c)s are not limited at all in the amount of lobbying they can engage in, but it must fit their exempt purpose (tax law)
- 527s rarely lobby because it is unusual that lobbying would support or oppose a candidate (their exempt purpose)
- Federal law and most state laws require lobbyist registration for all (varies wildly – check your state)
- Where things get tricky
- Ballot measures – intersection with election laws
- Local bodies of government – sometimes unclear whether there is legislation or a legislative body
- Funder restrictions – the biggest area – a public charity may have a large legal capacity to lobby, but its source of funding may have contractual restrictions on lobbying so the nonprofit’s practical capacity is much lower

Resources
MNCN: Nonprofit Lobbying and the Law
CLPI: Lobbying and the Law
AFJ: State lobbying law resources

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Sign up for the free NLP newsletter… every week get the shownotes and resources sent to you by email, plus get additional free content on the laws impacting nonprofits. Go to nplawcast.com/newsletter for more info and to sign up.
Need more than the podcast? Tim-Mooney.com and Beyond the Podcast at nplawcast.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

News & Notes
– Nonprofits and Elections: Balancing Personal Versus Organizational Activity on-demand video screencast is available now at nplawcast.com/beyondthepodcast.

Do all nonprofits have to file Form 990?

- No, but most do. The default is that your nonprofit will be filing a 990 about 5 months after the end of its tax year
- Who doesn’t file a Form 990?
- Small organizations
- Gross receipts of less than $100,000 and assets of less than $250,000 at the end of the year (Form 990-EZ)
- Gross receipts normally less than $25,000 (no filing necessary for FY 2007)
- For FY 2008 (next year’s filing) these organizations may be required to file an annual electronic notice – e-Postcard
- Churches and church-affiliated organizations (no filing necessary)
- Private foundations (Form 990-PF)
- Employee benefit trusts (Form 5500)
- Black lung benefit trusts (Form 990-BL)
- Special partnerships of religious and apostolic organizations (Form 1065).

Resources
IRS: EO Reporting Requirements – Annual Return Filing Exceptions

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Sign up for the free NLP newsletter… every week get the shownotes and resources sent to you by email, plus get additional free content on the laws impacting nonprofits. Go to nplawcast.com/newsletter for more info and to sign up.
Need more than the podcast? Tim-Mooney.com and Beyond the Podcast at nplawcast.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law

Download: Nonprofit Law Podcast #27 (mp3, 6:19)

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

News & Notes
Sign up for the free NLP newsletter… every week get the shownotes and resources sent to you by email, plus get additional free content on the laws impacting nonprofits. Go to nplawcast.com/newsletter for more info and to sign up.
Nonprofits and New Media: Legal Rules for using the Internet, Podcasts and Social Networks is available. Early reviews are great, and I’m glad it’s been well-recieved. Check out the poll at the bottom of the Beyond the Podcast page at nplawcast.com and give your input on what topics you’d like covered in the some of the next BTP offerings.

New Year, New Changes?
A lot of nonprofits consider making changes to their organization – new offerings, new services, new board members… even new addresses
How do you handle letting the IRS know about these things?
Form 990 – your annual return generally contains places in the form to include any of the ordinary changes that happen with nonprofits
new address, new board members, new officers, etc.
What about bigger changes
In some instances, bigger changes require more information to supplement the 990 – for instance, if your nonprofit reincorporates, you would need to attach the new articles of incorporation to the Form 990
What about super-big changes?
If your nonprofit is changing its services or mission dramatically, it might require additional action
Private Letter Ruling – a lengthy process with the IRS asking for specific advice on a specific matter. Get a lawyer!
Another 1023 – sometimes the changes are so big that you might as well be a new organization (i.e. a totally different exempt purpose than the one you applied for recognition in the first place)
This would be due to big changes… going from private foundation to public charity, or nonrelgious organization to a religious one that is exempt from filing 990s, etc.

Resources
Exempt Organizations – Reporting Changes to IRS
Private Letter Rulings and Determination Letters

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Email me with questions and suggested topics
Need more than the podcast? Tim-Mooney.com and Beyond the Podcast at nplawcast.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

News & Notes
We’re going on holiday schedule into the new year… we’ll have new editions every other week. Happy new year!
Sign up for the free NLP newsletter… every week get the shownotes and resources sent to you by email, plus get additional free content on the laws impacting nonprofits. Go to nplawcast.com/newsletter for more info and to sign up.

Beyond the Podcast
- Nonprofits are generally underserved in how they approach the regulations and laws because there’s a dearth of services out there that are reasonable for nonprofit budgets
- I’ve been very happy with the response to the show… but it’s always a bit frustrating to see the gap between what people can get between a 10 minute show and hiring a lawyer
- So, let’s fill that gap and go “Beyond the Podcast”
- The Nonprofit Law Podcast will always remain a free resource for nonprofit staff, officers and professionals. Beyond the Podcast will feature options for those who want to go “beyond the podcast” to dig into some of the topics in greater detail. It will stay low-cost – we want to make these easy for even the smallest community nonprofit to afford.
- We’ll be launching this on January 7, 2008… but if you are a newsletter subscriber you get an early shot at our first production – Nonprofits and New Media: Legal Rules for using the Internet, Podcasts and Social Networks

Nonprofits and New Media DVD
- Remember all the way back in #6 when this was announced?
- Evolved from an audioguide to a screencast… to a DVD
- 90 minutes of training
- Join Tim Mooney, a nonprofit attorney with over a decade of experience, for an overview of the laws impacting the use of new media by nonprofits. What does tax law have to say about your organization’s podcast and MySpace page? Are there federal election law implications to your get-out-the-vote efforts to your membership listserve? What kind of copyright issues does your nonprofit face when it uses other people’s photos on its blog? All of these questions, and more, on the first in NLP’s Beyond the Podcast series.
- Sign up for the NLP newsletter now and get this early plus get a $10 discount – nplawcast.com/newsletter
- Otherwise, keep your eyes peeled to nplawcast.com

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Email me with questions and suggested topics
Need more than the podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

News & Notes
We’re going on holiday schedule through the end of the year… we’ll have new editions every other week through the end of the year. Happy holidays!
Sign up for the free NLP newsletter… every week get the shownotes and resources sent to you by email, plus get additional free content on the laws impacting nonprofits. Go to nplawcast.com/newsletter for more info and to sign up.

When should a nonprofit amend its IRS tax return
Generally, not often – since there are no refunds to consider there is usually no economic advantage to doing it
Only if there is a substantial error
501(c)(3) that checks the box saying it engaged in political activity
501(c)(3) that exceeded its lobbying limits, only to later discover it did not and would like the excise taxes returned
501(c)(4) that miscalculated the amount of political activity it engaged in
Other substantial errors in reporting (income, etc.)
Missing schedules of a return
Best practices – write “ameded return” on the top of every page of the return in addition to checking the appropriate box for amended return on page 1

Closing

Email me with questions and suggested topics
Screencast on using the Internet, podcasting and social networking for your nonprofit – go to nplawcast.com for details
Need more than a podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

Month long series on election activity

Focuses on public charities, other 501(c)s and 527s
Covering voter guides, debates & forums, renting mailing lists, ballot measures, and voter registration/GOTV
Why now? Many nonprofits are already planning 2008 and some are already engaged in it
Don’t do any of these things? Still important to know in case something unexpected comes up

Voter registration -registering people to vote
GOTV – getting people to the polls, or otherwise aiding them to vote

501(c)(3)s
Purely nonpartisan
One permissible goal – getting people to exercise their right to vote
Permissible to target activities if based on nonpartisan criteria like location and audience
May not target based upon the way a group votes
May target if a disadvantaged or underrepresented group or targeted group has common interest
Do discuss a broad range of issues
Don’t suggest a correct position
Vote green. Register here. – NO
You can have an impact on the decisions affecting your life. Register to vote now. – YES
Let’s get out the pro-choice vote. Register here. – NO

Other 501(c)s
Partisan “slant” ok, but it would then count towards secondary activity, so watch amount

527s
Partisan “slant” ok

Resources

AFJ’s Rules of the Game

Closing

Email me with questions and suggested topics
AP audio & handbook on using the Internet, podcasting and social networking for your nonprofit – go to nplawcast.com for details
Need more than a podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

Month long series on election activity

Focuses on public charities, other 501(c)s and 527s
Covering voter guides, debates & forums, renting mailing lists, ballot measures, and voter registration/GOTV
Why now? Many nonprofits are already planning 2008 and some are already engaged in it
Don’t do any of these things? Still important to know in case something unexpected comes up

Ballot Measures
Also, referenda, ballot questions, bond measures, state questions, etc.
Legislation that is considered by voters
Work for or against is considered a hybrid… lobbying by tax law, election activity by state election law

501(c)(3)s
Limited capacity to work on ballot measures
Reporting requirements and registration usually required under state laws

Other organizations?
Lobbying not an issue under tax law
Reporting requirements and registration usually required under state laws

Resources

AFJ’s Rules of the Game
AFJ’s Seize the Initiative

Closing

Email me with questions and suggested topics
AP audio & handbook on using the Internet, podcasting and social networking for your nonprofit – go to nplawcast.com for details
Need more than a podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

Month long series on election activity

Focuses on public charities, other 501(c)s and 527s
Covering voter guides, debates & forums, renting mailing lists, ballot measures, and voter registration/GOTV
Why now? Many nonprofits are already planning 2008 and some are already engaged in it
Don’t do any of these things? Still important to know in case something unexpected comes up

501(c)(3)s can rent their mailing lists to candidates!?
A 501(c)(3) may rent mailing lists to political candidates
Must make the list available to all candidates
IRS is likely to look less favorably on such list rentals if the 501(c)(3) does not make such lists available to the public on a regular basis on the same terms that the lists are made available to candidates
Best practices – use a list broker

Other organizations?
Less of an issue since they can support or oppose candidates
Watch out for contribution prohibitions

Resources

AFJ’s Rules of the Game
IRS Fact Sheet 2006-17

Closing

Email me with questions and suggested topics
Audio guide on using the Internet, podcasting and social networking for your nonprofit coming soon- go to nplawcast.com for details
Need more than a podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

Month long series on election activity

Focuses on public charities, other 501(c)s and 527s
Covering voter guides, debates & forums, renting mailing lists, ballot measures, and voter registration/GOTV
Why now? Many nonprofits are already planning 2008 and some are already engaged in it
Don’t do any of these things? Still important to know in case something unexpected comes up

Debates & forums

Debate – multiple candidates on “stage” at same time
Forum – one at a time appearance

501(c)(3)s
Purely nonpartisan
Broad range of issues
Unbiased questions
Invite all viable candidates
Apply the rules fairly
Impartial moderator
Unbiased audience
Forums – no contextual favoritism
Special issue – inviting candidate for non-candidate reason (award, etc.) ok so long as it is not timed to coincide with the election

Other 501(c)s
Partisan “slant” ok, but it would then count towards secondary activity, so watch amount

527s
Forums and rallies typical

Resources

AFJ’s Rules of the Game

Closing

Email me with questions and suggested topics
Audio guide on using the Internet, podcasting and social networking for your nonprofit coming later this week – go to nplawcast.com for details.
Need more than a podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

Month long series on election activity

Focuses on public charities, other 501(c)s and 527s
Covering voter guides, debates & forums, renting mailing lists, ballot measures, and voter registration/GOTV
Why now? Many nonprofits are already planning 2008 and some are already engaged in it
Don’t do any of these things? Still important to know in case something unexpected comes up

Voter guides

501(c)(3)s
Purely nonpartisan
IRS safe harbor… reprint candidate questionnaire
No pledges
Broad range of issues
IRS: Too easy to make any candidate look good or bad when focusing on a single issue
Position on one issue should not suggest position on another
Several issues: four? five? more?
Distribute to all
Unbiased questions
No editing

Other 501(c)s
Partisan “slant” ok, but it would then count towards secondary activity, so watch amount

527s
Generally comparing and contrasting issue differences before a targeted distribution (i.e. NRA PAC comparing gun positions to NRA members)

Resources

AFJ’s Rules of the Game

Closing

Email me with questions and suggested topics
Audio guide to using the Internet, podcasting and social networking for your nonprofit – go to nplawcast.com for details next week
Need more than a podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

Month long series on election activity

Focuses on public charities, other 501(c)s and 527s
Covering voter guides, debates & forums, renting mailing lists, ballot measures, and voter registration/GOTV
Why now? Many nonprofits are already planning 2008 and some are already engaged in it
Don’t do any of these things? Still important to know in case something unexpected comes up

The basics

501(c)(3)s
Absolute prohibition on supporting or opposing candidates for public office
Nonpartisan work allowed (education, voter registration, GOTV, etc.)
Ballot measure work ok (lobbying) but follow state laws

Other 501(c)s
Secondary activity
Follow election laws (many prohibit express advocacy, almost all prohibit contributions)
Ballot measure work ok (lobbying) but follow state laws

527s
Organized to impact elections
Reporting requirements on state and federal level vary
Some register as political committees/PACs, others don’t and are limited in what they can do (but this reduces reporting and accountability)

Resources

AFJ’s Rules of the Game

Closing

Email me with questions and suggested topics
AP audio & handbook on using the Internet, podcasting and social networking for your nonprofit coming soon
Need more than a podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

NLP News

Now a top 15 show in iTunes… thank you listeners
Pass along the links to your colleagues who might be interested… 5-10 minutes per week, and I take requests on topics!

Listener request – who gets to see what?

- “For entertainment, some people in this town make trouble.”
- Who gets to see bylaws, articles of incorporation, minutes, financial reports, etc?
- Generally, you’re a private org and nobody has access to records other than proscribed by law
- Federal tax law… we covered in ep 4
- Virtually everything else is dependent on state and local laws
- Some states require additional disclosure through solicitation laws (ex. OR, WA)
- Even some munis require enhanced disclosure of records if you do business with them (ex. SF)
- Most states have public access to corporate records online, but not things like bylaws etc.
- Bylaws rule the rest (member or public access to records, etc.)

Tips & Best practices

- Check state and local laws
- Be very aware of solicitation registration rules
- If someone asks for records other than ones they are entitled to, and cannot show you the legal reason why they are entitled to them, you have the right to refuse the request
- Sometimes document requestors bear no ill-will (academics, etc.). Choose your battles.

Closing

Email me with questions and suggested topics
AP audio & handbook on using the Internet, podcasting and social networking for your nonprofit coming soon
Need more than a podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

What are the changes coming for small nonprofits?
- Form 990N… the “e-postcard”
- Previously, tax-exempt organizations with gross receipts of $25,000 or less were not required to submit information returns. Beginning next year, they will file the Form 990N.
- Short, easy and electronic
- Provide a legal name and mailing address, any other names used, a Web address if one exists, the name and address of a principal officer and a statement confirming the organization’s annual gross receipts are normally $25,000 or less.

Tips & Best practices

- Continue to track those finances!
- Be aware there will be slightly more paperwork to file (versus none!)
- Remember… organizations shouldn’t ignore filing the 990N, or they risk losing their tax-exempt status
- Info on the reporting system is forthcoming… we’ll be on top of it here at the Nonprofit Law Podcast
- Make sure the gross receipts are not exceeding $25,000… if so, you’ve graduated to 990EZ or 990!

Resources

Educational letter from IRS (pdf)
IRS Press Release

Closing

Email me with questions and suggested topics
AP audio & handbook on using the Internet, podcasting and social networking for your nonprofit coming later this summer
Need more than a podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

When is a person acting on their own versus acting on behalf of their organization?

- Joining a nonprofit as a director or a staff member doesn’t take away your individual rights
- Individuals can do things that are otherwise forbidden… donate time/money to campaign, etc.
- General rule – so long as an organization’s financial resources, facilities, or staff are not used, the organization is not going to be beholden to the individual acts of its staff, officers or directors

When do the actions become attributed to an organization?

- Principles of agency are used… if the person acts as if they have power, and they actually do have the power, the IRS will usually consider the action that of the organization
- Actions of individuals that weren’t ok’d by the group, but were later “implicitly ratified.” (i.e. Organization found out about the actions and did not disavow them)

Tips & Best practices

- Have a policy in place on use of organizational resources
- Encourage use of disclaimers for individuals working on non-organizational endeavors (i.e. “organization shown for identification purposes only”)

Resources

Election Year Issues (pp. 363-365) – IRS CPE Text
Election Year Activities for Section 501(c)(3) Organizations: Frequently Asked Questions – McDermott Will & Emery
Closing

Email me with questions and suggested topics
AP audio & handbook on using the Internet, podcasting and social networking for your nonprofit coming later this summer
Need more than a podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

Common characteristics

All are tax exempt
All have some kind of legal form in a state
These are federal tax law designations (numbers correspond to the tax code)

Public charities – 501(c)(3)

Support “charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and the preventing cruelty to children or animals.”
Have a certain level of public support (many small contributors… this is a future show!)
Donors get tax deductions
No support or opposition to candidates (future show)
Limited lobbying (future show)

i.e. Red Cross, American Cancer Society, etc.

Private foundations – 501(c)(3)

Same as a public charity, but they get their money from a limited source (can’t show public support)
i.e. Bill and Melinda Gates Foundation, Ford Foundation, etc.

Social Welfare – 501(c)(4)

Donors do not get tax deductions
Unlimited lobbying… tend to be advocacy groups
Limited election work (secondary activity)
i.e. Sierra Club, …

Unions and Labor Organizations – 501(c)(5) and Trade Associations – 501(c)(6)

Same rules as 501(c)(4)s

Political Organizations – 527s

PACs, political parties, formerly “Stealth PACs”
All activity goes towards the election or defeat of a candidate or ballot measure
VERY complicated because of the overlay with state or federal election laws
If you wade in this thicket, make sure you have a lawyer advising you!

Resources

AFJ – The Connection
IRS – Nonprofit index

Closing

Email me with questions and suggested topics
AP audio & written guides coming soon
Need more than a podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

Background

Nonprofits get preferential tax treatment
The tradeoff for that preferential tax treatment comes in a few ways… one of them is public disclosure of information

The basic rules

Public charities have to give over, upon request their tax returns from the last three years (Form 990s) and their application for recognition of exemption (Form 1023).

If someone comes in and requests in-person, you must provide these documents then and there.

If the request comes in writing, email or phone, you have 30 days to produce the documents.

You may charge reasonable copying costs… details on that in a resource I’ll mention later in the show.

There are some major exceptions to keep in mind… so pay attention to what your organization does not have to turn over upon request as much as you pay attention to what your organization is obligated to provide.

You can always give more information to the public if you want.

Tax return

- Form 990
- Any attachments, and
- All schedules,

Exception… you don’t have to turn over contributors names… you may legally black out/redact the names of contributors in Schedule B and any identifying information in Schedule B Part II.

NEVER let anyone browbeat you into providing that information. It is confidential and legally protected.

Application

- A copy of the organization’s Form 1023 (if a 501(c)(3)) or 1024 (if another 501(c) org)
- All attachments
- All supporting documents, and
- Any communications with the IRS sent about the application

Exception…. If the organization is older than July 15, 1987 and you don’t have a copy of the application, you do not need to turn it over. As of July 15, 1987 all nonprofits filing a 1023 or 1024 were required to hold onto those applications. You should have them!

Resources

AFJ - Give Me Your 990! (pdf)
IRS – Public disclosure article
Venable LLP – Public disclosure article

Closing

Email me with questions and suggested topics
AP audio & written guides coming soon
Need more than a podcast? tim-mooney.com
I look forward to bringing the information to the community
Thank you for joining me on the nonprofit law podcast… take care.
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes:

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Contact

Is it time to dust off your bylaws?

Your bylaws are important

Things to look at:
Committees… meetings… notice requirements… board terms

Time to change? Maybe… Has your organization changed?

Change in your mission
Change in organization operation
– do you really still follow the annual meeting procedures? Need to update?
– How do your bylaws handle resignations or other situations where a board member leaves?
– How do you handle members or constituents you serve? Do they have a voice on the board, or should the board really be insulated from it?

See http://tx.essortment.com/nonprofitsbylaw_pzv.htm
Advisory boards as an option or add-on

Resources

Nolo Press… How to Form a Nonprofit Corporation
BoardSource… The Nonprofit Board’s Guide to Bylaws: Creating a Framework for Effective Governance
Sample bylaws – remember these bylaws were probably written for the specific needs of the organizations… look, compare, alter as needed, but they’re best as a reference. If you’ve got some complicated issues, consult a lawyer!

Foundation Center
Another sample

Closing

Email me with questions and suggested topics
AP audio & written guides coming soon
Need more than a podcast? Tim-Mooney.com
I look forward to bringing the information to the community
Thank you for joining me on the nonprofit law podcast… take care.
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.