Saturday, February 14, 2015

Princeton Says Colleges at Risk From Tax Court Ruling

Princeton University lost a bid to dismiss a lawsuit seeking to rescind its New Jersey property-tax exemption for 2014, a ruling that could cost the school millions of dollars and jeopardize the tax status of all nonprofit colleges.
Tax Court Judge Vito Bianco ruled Thursday that a lawsuit by four residents of the town of Princeton will go forward, lawyers said. They sued to revoke the school’s tax exemption, in part because it shares royalties with faculty, mostly from a patent that Eli Lilly & Co. turned into the cancer drug Alimta. The judge didn’t rule on the merits of the case while rejecting the university’s claim that the case should turn on whether its “dominant motive” is to make a profit.
“He’s making it clear that the test for losing tax-exemption status is whether these institutions engage in significant commercial conduct,” Bruce Afran, an attorney for the residents, said in a telephone interview. “This case will ultimately affect the tax-exempt status of many universities.”
Princeton, the fifth-richest U.S. university and among the most selective, said it will immediately appeal. The oral ruling by Bianco wasn’t immediately available in court records.
Arguments by the residents “potentially jeopardize” all nonprofit institutions, including schools, hospitals, charities and houses of worship, the university’s general counsel, Ramona Romero, said in a statement.
Princeton patented a compound by a chemistry professor that Lilly used to create Alimta. The school reaped $524 million in license income from 2005 to 2012, mostly from Lilly, according to court records. It used part of the money to build a new chemistry building and pay $118 million to faculty through 2011 beyond their salaries.
The town of Princeton is also a defendant in the case and has taken no position on the litigation, Afran said.
The case is Fields v. Trustees of Princeton University, 5904-14, Tax Court of New Jersey (Morristown).

No Board? No Tax Filings? No Problem! Connected Nonprofit Makes Hay in the Bronx

Any community-based nonprofit that can convince powerful state legislators to appropriate funding to their programs is in an admirable position. But it’s still the public’s money, and you had better deliver, or your work is just another example of graft and corruption.

The New York Daily News reports that N.Y. Assembly Speaker Carl Heastie steered more than $600,000 to a Bronx nonprofit that had no official board and filed no tax returns for years while receiving public funding and, ultimately, declared bankruptcy.

The Bronx Business Alliance (BBA) stopped filing its 990s after the 2008-09 tax year, when it reported a deficit. However, Heastie kept funding them—his final grant was for $115,000 in 2009-2010, while other politicians provided hundreds of thousands of dollars more in 2010-2011.

The group went out of business in 2012, according to the Alliance’s board chairman during the time Heastie was supporting it; he owns a storefront in one of the neighborhoods the association targeted for improvement.

It gets worse, according to the paper: In 2010, the BBA tried to get a state grant to renovate four Bronx buildings owned by a board member of a nonprofit the association was partnering with. The state awarded the $200,000 grant, but the building owner ultimately had other plans for the property.

Heastie’s grant of $115,000 in 2009-2010 was the last round of money the group received. Other Bronx politicians sponsored money in 2011, but then-Gov. David Paterson stopped the appropriations for the BBA and other similar projects.

Because the group stopped filing tax returns, says the Daily News, it is unclear what happened to all the money or who was overseeing the funds, despite state and federal laws requiring transparency. The Speaker responded to the story, saying that “it wasn’t his responsibility to follow up and see if the public dollars he’d doled out were spent appropriately by the association.”

The group told state funders it would use the money to give “start-up assistance” and “business plan development” advice to local small business owners. Heastie placed the blame for lax oversight on the various state agencies charged with administering the grant funds.

Meanwhile, some individuals listed as board members contacted by the paper said they were not board members in any official capacity

Saturday, February 7, 2015

IRS Rules on Domesticated Organization and Tax-Exempt Status

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.

The change in domicile did not affect the corporation’s charitable purpose or operations.

The following five points were integral to the IRS’s ruling:

the nonprofit corporation was not altering its basic organizational form;

the nonprofit corporation was filing an amendment to its formation document, rather than filing a new one;

both states involved had laws providing that a domesticated nonprofit corporation would be the same corporation that existed under the laws of its original state of incorporation (Indeed, the IRS noted that its ruling would be different if a new corporation were created in State B and the nonprofit corporation merged into it or transferred assets to it);

the nonprofit corporation had the same liabilities to the IRS and others as it had before its change in domicile; and

the nonprofit corporation maintained the same incorporation date.

This ruling does not change the IRS’s position that a nonprofit corporation that reincorporates in a new state is a new entity that must file a new application for tax-exempt status. In fact, the ruling makes clear that if a nonprofit corporation’s submission of “Articles of Domestication” to change its state of domicile causes it to become a new organization, then the corporation may not rely on its prior tax-exemption recognition and must file a new application for tax-exempt status. If such change of domicile does not cause the corporation to become a new organization, however, then the corporation may rely on its previous recognition of tax-exempt status and does not need to file a new application for tax-exempt status.

Although the ruling may not be used or cited as precedent, it seems to suggest that, depending on state law, a nonprofit, tax-exempt corporation can, in fact, reincorporate in a new state without filing a new application for tax-exempt status. If a corporation wants to change its state of domicile without filing a new application for tax-exempt status, it must first ensure that the new state has a domestication statute that provides that the corporation would be the same as the initial corporation.

Organizations seeking to change state of domicile should take great care to understand the relevant state laws and realize that, in many cases, a new application for tax-exempt status may still have to be filed. As always, changes to an organization’s governing documents should be reported on IRS Form 990 as significant changes.

Wednesday, February 4, 2015

Nonprofit beat: Charities debate extending donation deadline

Should the deadline for charity tax deductions be extended to April 15, so tax filers can make last-minute donations?

Or would it take a bite out of the holiday and year-end giving blitz that nonprofits have come to enjoy?

That’s been a key part of a debate among philanthropy policy wonks in Washington for years. But last year, the provision to extend the donation deadline to April 15 was approved by the House as part of its America Gives More Act. It was not included in Senate legislation, and therefore didn’t have legs.

It’s unclear whether the provision will be part of any congressional action this year. But the notion that tax filers, possibly flush with unexpected tax refunds, could donate to charities retroactively finally has some traction, proponents say.

The idea is not without precedent, wrote Eugene Steuerle, a senior fellow at the Urban Institute in Washington, D.C. President Obama signed a provision allowing donations to be made for Haiti earthquake relief up until March 2010 to be deducted on 2009 tax returns. Likewise, George W. Bush permitted donations for tsunami relief made through Jan. 31, 2005, to be deducted in the previous year.

He called tax filing time a “window of opportunity.’’ Americans know their total annual income, their projected taxes and how charitable donations could both benefit their bottom line and those of charities.

“When filing taxes, they [Americans] can calculate exactly how much tax an additional donation would save,’’ Steuerle wrote.

While endorsed by charities such as the national Meals on Wheels Association, the April 15 deadline was not broadly endorsed by charities. Mega-charities such as United Way of America, for example, didn’t take a position on it.

Some nonprofits feared the effect on the coveted year-end giving. Others worried that it would simply shift the time frame for making donations, creating delays that could clog their cash flow.

The Nascent Nonprofit Organization—What Happens Before a Nonprofit Is Born?

FROM NONPROFIT QUARTERLY:

There is a classic philosophical problem called the “sorites paradox,” or “paradox of the heap”—a version of which goes something like this: A single grain of wheat does not comprise a heap; as a single grain is not a heap, if you add one more grain, you still don’t have a heap; as two grains are not a heap, add a third grain, and you still don’t have a heap; and so on. Following this logic, no amount of wheat added to that first grain can make a heap. While the line reasoning is plausible, it arrives at what appears to be a false conclusion—thus the paradox.

I highlight this philosophical riddle in an article about organizational emergence because it illuminates the difficulty of identifying exactly when enough of something accumulates to allow one to assert that a heap has come into existence. The same applies to new organizations: Is thinking about starting a new nonprofit organization enough to say that a new nonprofit has been created? Is gathering information or talking to people about starting a new nonprofit verification of its existence? How about amassing resources? One could, of course, argue that a nonprofit is born the minute it has been officially registered by the IRS and thus attains formal status—but I would argue that the emergence of a new nonprofit organization is better understood as a process rather than a discrete event or state. Specifically, reducing nonprofit birth to the act of registration is to simplify and ignore critical aspects of the organizing process.

This is not to say that formally registering a new nonprofit is a minor event. Quite the opposite: registration is an important act that establishes boundaries—that is to say, a “barrier condition between the organization and its environment.”1 As these boundaries coalesce, it is possible for the founder(s) of the new organizations to (among other things) establish routines and procedures, and develop capacities within the nonprofit that allows it to take coordinated action. Still, nonprofit founders do not instantaneously register new nonprofits but rather create them through various actions—many of which take place before formal registration of the new agency occurs. And, in the entrepreneurship literature, the portion of the development process transpiring before any formal entity has been established is often referred to as the gestation or nascent stage of organizational development.

Despite its intuitive appeal, however, the gestation of nonprofit organizations remains a relatively underresearched area—in part because it is hard to identify a nascent nonprofit organization. While there appears to be growing scholarly interest in trying to better understand the earliest phases of nonprofit life, to date the only thing we know is that we don’t know much.2 This article is organized around a number of observations of the nascent stage, based on my own research and work with nonprofit start-ups as well as on findings from the entrepreneurship and social entrepreneurship literature. My hope is that these observations will serve as an entry point for discussion and debate, and stimulate further research focusing on nonprofit emergence.

Observation #1: The patterns of emergence are exceptionally heterogeneous.

When examining the nascent stage of organizational development, we find that it is not a linear process. We also find that it is exceptionally heterogeneous. In one of the first empirical studies of firm gestation, Paul Reynolds and Brenda Miller examined the conception-to-birth process of over three thousand ventures. They found that many of the ventures did not engage in all of the presumed key events of gestation; in addition, they were not able to detect any particular sequencing of the various actions the ventures took. They also found significant variance in the types of actions taken. In other words, these ventures differed in terms of what they were doing as well as in what order.3

But while organizational creation is not a linear process, it remains depicted as one. Recently, I visited the “how to start a new business/nonprofit” section in my local bookstore, and the vast majority of books were organized as manuals, providing road maps or step-by-step instructions on what to do and how and when to do it. And perhaps the most common instruction given to would-be-entrepreneurs that comes out of this literature is to begin by generating a business plan.

Given that there are many unknowns when attempting to initiate a new organization, writing a business plan before moving forward seems reasonable and useful. I have nothing against nonprofit business plans, and planning is indeed a powerful and important process for any organization—but nonprofit emergence is so much more than a plan, and creating a business plan, as we know, is not a necessary condition for starting up a new nonprofit (after all, nonprofits came into being as far back as 1793, as de Tocqueville observed in his account of his visit to the United States in 1831—long before the idea that every start-up needs a business plan became a founding principle). Nor is creating a business plan a necessary condition for start-up success. Plenty of research in the for-profit field has examined the link between business plans and organizational performance, but the evidence to date is inconclusive. In addition, it is often noted how highly successful entrepreneurs, including Steve Jobs, Bill Gates, and Michael Dell, did not write formal business plans before starting their ventures, and many entrepreneurs consider producing a business plan a waste of scarce resources and time that ought to be devoted to more-productive activities. Finally, an underlying assumption of the business plan is that the entrepreneur can figure out most of the unknowns of a new organization in advance—but in today’s dynamic and often uncertain nonprofit environment, making plans can be inherently difficult, and relying on a plan can be unwise if the conditions change. Or, as Mike Tyson put it, “Everyone has a plan—until they get punched in the face.”

The point here is that a business plan is just one of many possible actions a nascent nonprofit entrepreneur may or may not undertake. And taken together, the range, timing, and choices of actions to consider and account for illustrate the difficulties and complexities facing scholars, start-up funders, and policy-makers trying to fully comprehend the birth stage of nonprofit organizations. Clearly, there is more than one way to get through the nascent stage and end up with a new nonprofit organization—and, in order to understand such equifinality, we need to view nonprofit organizational birth as the result of an experimentally oriented rather than linear process.4

Observation #2: The length of the nascent stage varies significantly.

In addition to the variability discussed in the previous section, the time it takes for a nascent entrepreneur to move a new organization from inception to birth also differs considerably. The Reynolds and Miller study found that the average nascent stage lasted around three years, yet some of the ventures in their sample took as little as four weeks and others close to a decade to get off the ground.5 That the length of the nascent stage can vary significantly suggests that time may not be a very useful factor in analyzing the birth of new organizations. Some scholars advocate that we may do better to look at capacity, and that what determines the length of the nascent stage is linked to the “maturity” of these capacities.6 The starting point for the capacity approach is that during the nascent stage, an emerging organization is vulnerable, and overcoming this vulnerability is essential for a new organization to progress to the next level. In other words, the length of emergence depends on the ability to develop a sufficient capacity endowment—and the time this process takes can vary considerably from venture to venture.

Observation #3: Many nascent organizations perish before they are “born.”

The notion that nascent organizations are vulnerable is supported by research by Simon Parker and Yacine Belghitar, Howard Aldrich, and Maija Renko, among others.7 Renko noted recently that “the start-up process of a new venture is precarious: most entrepreneurial activities end in ‘near-misses,’ that is, organizations that die while emerging.” Renko’s statement is based on data from the Panel Study of Entrepreneurial Dynamics, which found that six years after entering the nascent stage, two-thirds of entrepreneurs had either abandoned the process or were still trying to start up the new venture.8 This observation is important for two related reasons. First, it illuminates how the common perception of organizational birth as an observable formal start-up results from analysis of two underlying rates: the rate at which nascent organizational activity is instigated, and the success rate of such attempts. So, when we talk about nonprofit organizational “deaths,” we must distinguish and clarify whether or not we are including both nascent-stage deaths and deaths of nonprofits already founded. Clearly, if we include the former, the overall number of deaths significantly increases, and if we study just the latter, we are likely to ignore potentially important insights into how and why organizations live or die. Second, if nascent deaths are not taken into consideration in discussions about and research on nonprofit births, we have a selection-bias issue resulting from only considering nascent activities that led to successfully established organizations. Per Davidsson points out that this approach is “equivalent to studying gambling by exclusively investigating winners.”9 This, in turn, highlights the importance of generating panel rather than crosssectional data that take into account nascent activity, in order to properly analyze how new organizations are born, what allows new organizations to thrive, and why and how they die.

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Observation #4: We need to know more about the intentions of nonprofit entrepreneurs.

A key concern when trying to analyze the nascent stage is where to begin—in other words, what are the early factors leading to nascent activity? Because new organizations are seldom coerced into being, and because they do not represent a random, passive by-product of environmental circumstances, scholars have long focused on intentionality, which proposes that at inception the fundamental organizational idea resides within the entrepreneur, and therefore the goals of the new organization are reflections of his or her intentions.10 Hence, during the nascent stage it is initially the entrepreneurs’ intentions that help craft the direction and actions taken. Several scholars believe that, given the above, intentionality must precede more tangible features of emerging organizations (for example, looking for resources).11

Notwithstanding the scholarly challenge to capture and assess entrepreneurial intent, the intentionality construct has long been an important puzzle piece in a much-needed conceptual framework for entrepreneurship on which researchers can anchor their studies of new-venture creation. In the nonprofit literature to date, the creation of nonprofits is often framed as a response to market failure, government failure, or contract failure—or in response to various expressive needs.12

Nonprofit entrepreneurs are also frequently described as passionate and ideologically motivated individuals who seek to address problems and/or needs that speak to them on those levels.13 However, while such characteristics as being responsive to problems and needs and being passionate and driven are useful information, this does not tell us much about the nonprofit entrepreneur’s intentions for his or her new organization. What are the aspirations and goals with respect to growth? Will the organization use an innovative approach, or will it replicate what is already in use? Is it a hobby project, or is it going to be the entrepreneur’s source of employment? The answers to these types of questions are key to understanding how a nascent venture gets organized and evolves, and thus should be explored in much more detail by nonprofit scholars.

Observation #5: What transpires during the nascent stage leaves an enduring imprint on the new organization.

In his seminal work “Social Structure and Organizations,” Arthur Stinchcombe highlighted the enduring impact of prior organizational history on subsequent organizational structures and events.14 The idea that important founding conditions are embossed onto new organizations and tend to persist over time is often referred to as “organizational imprinting.” Because of its long-lasting implications, I would argue that understanding the process of imprinting is one of the primary reasons nonprofit scholars and practitioners need to pay more attention to the nascent stage. Therein lie potential answers to very critical questions and facets of organizational development, including how nonprofit organizational identity and/or culture are shaped, and why nonprofits initiated at different times have different forms and follow different strategies. In addition, insights from studies of imprinting during the nascent stage can help bring greater clarity to such issues as the sources and rationales of founder’s syndrome and how emerging nonprofits seek to overcome their liability of newness and increase their legitimacy.

• • •

This article attempts to show that paying attention to the nascent stage of nonprofits is a sound and valuable approach to viewing nonprofit birth as a process, and that it opens up a new and very promising avenue for nonprofit entrepreneurship and organizational research. While there is a growing interest in the earliest phases of nonprofit life, there is still considerable room and need for further research and discussion regarding the nascent stage and how we can better understand it. While the five key observations outlined above are certainly not the complete picture, my hope is that they will facilitate progress in learning about the nascent stage and why it is essential to a comprehensive understanding of organizational development. Research on the nascent stage of nonprofit organizations is, in other words, in its own nascent stage—suggesting that there are innumerable challenges and opportunities to take on moving forward.