New LLC Act

By | business

For owners of Minnesota LLCs that were formed prior to August 1, 2015 and have not yet checked in regarding whether law changes could impact their LLC beginning January 1st – stop procrastinating! Beginning January 1, 2018, some owners of Minnesota LLCs could wake up feeling a little rough around the edges due to more than how they spent their New Year’s Eve.

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Johnson Amendment

By | Nonprofit

Since 1954, the so-called “Johnson Amendment,” a portion of the provision in the Internal Revenue Code that lays out the basic requirements for Section 501(c)(3) organizations, has prohibited charities from implicitly or explicitly endorsing or opposing political candidates. Read More

Pharma-funded Charities and Private Benefit

By | Nonprofit


Too close for comfort?

Many patient assistance charities provide funding for patients to purchase treatments from the same pharmaceutical companies that provide the majority of funding for these charities. They are accused of increasing the profits of prescription drug companies and continuing to prop up inflated prices by enabling people to purchase expensive treatments. More recently, court records indicate that a new level of scrutiny has arisen for one of the patient assistance charities, which is under an IRS audit in large part due to the organization’s funding sources and the benefits they appear to reap from that funding.

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EO Update – Gulf Coast TEGE

By | Nonprofit
The next Gulf Cost TEGE Exempt Organizations Update is coming up June 16, 2017, in Dallas, TX.  Heidi Christianson of Nilan Johnson Lewis and I are co-hosting the local participation of this great event again this year. Heidi has graciously agreed to provide us again with WebEx capability to participate in this meeting at the Nilan Johnson Lewis offices.
As usual, it looks to be a great line-up of topics with great speakers:
“Update from Director of Exams, Maria Hooke”
“Capitol Hill Update” – moderated by Alex Reid (joined by counsel to JCT, Ways & Means, and Senate Finance)
“EO Technical Update from TEGE Associate Chief Counsel Office”
“Updates from TEGE Quarterly Call with Margaret Von Lienen (Acting Director, Exempt Organizations)”
Additional anticipated speaker from IRS Division Counsel
“Controversy Topics the Non-Controversy Practitioner Needs to Know”
We also have a request in to state regulators
The agenda and all details are available here, and registration is open now. Please submit any questions for speakers to danika at mendrygallaw dot com.
Heidi has applied for CLE credit, and the event is already approved for CPE credit. Please feel free to reach out to me if there are questions.

Upcoming presentation: Nonprofits and Political Activity

By | Nonprofit

On April 24, 2017, I’ll be presenting with Rebecca Lucero, Public Policy Director with MCN, at the Minnesota State Bar Association. We will be discussing Nonprofits and Political Activity in These  Political Times. This presentation will provide an overview and specific examples on the types of issues most nonprofits need to consider in order to manage the risks that exist with engaging in advocacy activities, particularly during these times when organizations may be expanding their advocacy and lobbying work.

Nonprofit Law Conference, March 14, 2017

By | Nonprofit

On March 14, 2017, I’ll be discussing Exemption Issues and Small Organizations (or, How to Clean Up Messes), as well as participating as a panelist on Practical and Timely Hints for Working with Nonprofits. The annual Nonprofit Law Conference will be held at the Minnesota CLE Conference Center in Minnepolis, and attendees may claim a maximum of 6.5 CLE credits for this seminar.  A full list of presenters, topics, and online registration can be found here.

Minnesota Women Lawyers panel

By | Nonprofit

Please join me February 15th for a panel discussion put on by the MWL Equity Committee, regarding non-profit board service: considerations for attorneys. Registration is open online until February 13th. The fee is $10 for non-members, and free for MWL members.

Qualified Small Employer Health Reimbursement Arrangements Allowed in 2017

By | Nonprofit

I don’t often address employee benefits issues on this blog because I don’t myself practice in that area.  However, a new law that just passed reinstates (to a degree) a health care reimbursement option that some smaller nonprofits may be able to take advantage of!  Since I know only enough to get in trouble in this area, I asked my good friend Jewelie Grape to give me a summary.  If you want to know more, I suggest you contact her directly or let me know and I would be happy to put you in contact with her!

Great news for small employers who want to provide payment or reimbursement for employees’ individual health insurance policies on a pre-tax basis…On December 13, 2016, President Obama signed into law the 21st Century Cures Act which includes a section allowing qualified small employers to offer a new type of health reimbursement arrangement (HRA) to employees effective January 1, 2017 (the Affordable Care Act previously prohibited most stand-alone HRAs). The new arrangement is called a qualified small employer health reimbursement arrangement (QSEHRA).

Only employers who employ fewer than 50 full-time equivalent employees and do not offer a group health plan to any employee will be allowed to pay or reimburse employees’ eligible medical care expenses through a QSEHRA.

The QSEHRA must:

  • be provided on the same terms to all eligible employees of the eligible employer (variation is allowed in the pricing of a policy based on age and number of family members),
  • be funded solely by the employer (no employee salary reduction contributions are allowed),
  • provide for the payment or reimbursement of eligible medical care expenses incurred by the employee or family members (including premiums for individual health coverage) only after the employee provides proof of health coverage, and
  • ensure annual payment or reimbursement does not exceed $4,950 ($10,000 if family members are covered under the HRA) in 2017 (this amount could change in future years).

An eligible employer funding a QSEHRA must provide a notice to eligible employees not later than 90 days before the beginning of the year or the date the eligible employee is first eligible to participate in the QSEHRA.

A few additional points – the health coverage must be minimum essential coverage (as defined under the Affordable Care Act) in order for the payment or reimbursement to be tax-free.  Reimbursement amounts may reduce the amount of premium tax credit/marketplace subsidies available to eligible employees, and if the QSEHRA provides “affordable coverage” (as defined under the Affordable Care Act), employees will not be eligible for a marketplace subsidy. Finally, the employer must report QSEHRA reimbursement amounts on employees’ Form W-2s.

Part three: Churches as Tax Exempt Organizations

By | Nonprofit

This is the final post in my three part blog series on churches as tax exempt organizations. This third section will discuss charitable contributions, special rules limiting the IRS’ authority to audit a church, and 990-series return filing requirements.

Charitable contributions

The burden is generally on donors to obtain and maintain the documentation they need to be able to take a deduction for a charitable contribution.  However, a donor cannot claim a tax deduction for a contribution of $250 or more unless they receive a contemporaneous written acknowledgment of the contribution. The written acknowledgment should include the name of the church/religious organization, date of contribution, amount of cash contribution, and/or description (but not the value) of a non-cash contribution. The written acknowledgment must also contain one of the following: 1. statement saying no goods/services were received in return for the contribution 2. statement saying that any goods/services provided in return for the contribution consisted entirely of intangible religious benefits, or 3. a description and estimate of the value of goods/services other than intangible religious benefits provided in return for the contribution.  Intangible religious benefits include things like the admission to a religious ceremony or de minimis tangible benefits like wine for a religious ceremony. Benefits that are not intangible religious benefits include things like the tuition for education leading to a recognized degree, travel services, and consumer goods.  There is not a penalty imposed by the IRS for failing to provide a contemporaneous written acknowledgement, but it is good donor relations and in general is provided as a matter of course to the donor.  Many churches choose to provide a single notice at the end of the tax year that summarizes the donor’s giving, rather than sending out regular notices.

An organization is required to provide an acknowledgement when a contribution of $75 or more is made in exchange for goods/services.  These types of contributions are called quid pro quo contributions. The donor needs to know the value of the goods/services since they can only take a contribution deduction if the donation exceeds the fair market value of the goods/services.  The organization will need to provide a written statement to a donor (as outlined in the prior paragraph) for a quid pro quo contribution unless the goods or services received in return for the contribution are of insubstantial value, or if the only benefit received by the donor is an intangible religious benefit.

For more information on charitable contributions and the substantiation and disclosure requirements, see IRS Publication 1771.

Special rules limiting IRS authority to audit a church

The IRS may only initiate an audit if a high level Treasury Department official reasonably believes, based on a written statement of facts and circumstances, that a church does not qualify for exemption, may not be paying taxes on an unrelated business or taxable activity, may not be properly withholding or paying employment taxes, or may have entered into an excess benefit transaction with certain insiders to the organization. Congress has imposed special limitations on how and when the IRS can conduct civil inquiries and examinations, found under IRC Section 7611.

Restrictions on church inquiries are limited to churches, and conventions or associations of the church, and do not apply to people or organizations related to the church, including integrated auxiliaries like a school, missionary group, etc.

Once the reasonable belief requirement is met, the IRS must provide a written notice to the church outlining its concerns and the audit process will proceed as follows:

  1. The church is allowed a reasonable time period to respond to the IRS with a letter addressing the concerns/provide an explanation
  2. If the church hasn’t responded in the allotted time or the IRS doesn’t feel the issue was addressed, they will issue a second notice within 90 days, informing the church that they will need to examine the books and records
  3. After the second notice but before the examination of the books/records, the church can request a conference with the IRS
  4. An examination of the books/records by the IRS is generally completed within two years from the date of the second notice

If at any time the church provides documentation to the IRS that satisfies their inquiry, the case will be closed without examination.

Churches and 990 filing requirements

The thresholds for determining which Form 990-series return to file are found here. Generally, all religious organizations must file form 990, 990-EZ, or 990-N, unless they are subject to an exception. The correct form must be filed before the 15th day of the 5th month following the end of the organization’s tax year. Form 990-N and Forms 990 for certain large organizations must be filed electronically.

Exceptions to the requirement to file Form 990, 990-EZ, and 990-N are limited to the following:

  • Churches (as opposed to “religious organizations”)
  • Inter-church organizations of local units of a church
  • Mission societies sponsored by or affiliated with one or more churches or church denomination, if more than half of the activities are conducted in, or directed at, persons in foreign countries
  • An exclusively religious activity of any religious order

If an organization is not required to file a Form 990-series return, but chooses to do so, it should continue or it will be revoked for failing to file an annual return for three years in a row.  Once an organization begins filing, the IRS will have that organization marked as a filing organization unless the organization affirmatively seeks to have its status changed back to that of a non-filer.

Churches and religious organizations are not exempt from the requirement to file a Form 990-T if they generate gross income from unrelated business of $1,000 or more for a taxable year. This form must be filed by the 15th day of the 5th month after the organization’s accounting period ends. There are no exceptions to file form 990-T.

The topics I have covered on churches are only intended as a summary.  Organizations are encouraged to look at other resources (not already linked to in these blog posts) that the IRS provides, including:

Publication 463: Travel, Entertainment, Gift, and Car Expenses

Publication 517: Social Security and Other Information for Members of the Clergy & Religious Workers

Publication 526: Charitable Contributions

Publication 557: Tax-Exempt Status for Your Organization

Publication 598: Tax on Unrelated Business Income and Exempt Organizations

Publication 1828: Tax Guide for Churches & Religious Organizations