When a nonprofit organization seeks tax-exempt status, understanding the differences between various IRS classifications is essential. This is especially true for clubs and associations focused on recreational or social activities. Take, for example, a pickleball club that recently stepped into the kitchen and was served a denial when it applied for 501(c)(3) status. While the club's mission to provide recreational and social spaces for pickleball enthusiasts might sound ace, it didn’t meet the criteria for 501(c)(3). Instead, it seems more appropriately classified as a 501(c)(7) social club. Let’s rally around the reasons why that is, and what it means for organizations in a similar position.

Some thoughts:

1. HR 9495 is a terrible bill, on its face and in its intent.

2. It affirms the authoritarian intentions of the incoming administration.

3. It confirms that the Democratic party (15 of whom voted for the bill this week, and 52 of whom voted for it the prior week) has many members who will support those authoritarian intentions if it gives them a chance to intimidate supporters of the Palestinian people and silence critics of Israel’s atrocities in Gaza.

4. If you have doubts about #3, note that the provisions in this bill are identical to HR 6408, which passed the House in April by a vote of 382 to 11. If your response to that is “it wasn’t Trump at the time,” then I’d say: (1) granting authoritarian powers to the favored party’s administration is still authoritarianism, and (2) please consult April Trump vs. Biden polls and consider whether this was a foreseeable outcome.

5. Whether or not nonprofits and other defenders of common sense are successful in mobilizing to defeat the bill in the Senate, our advice to nonprofits will remain the same as it was before this bill was introduced.

More on this below…

In the evolving landscape of social innovation and community empowerment, fiscal sponsorship emerges as an important tool for driving change. It's a vehicle that accelerates the launch of new initiatives, fuels grassroots movements, and amplifies the impact of visionary leaders. However, within the realm of fiscal sponsorship, there lies a maze of legal and administrative complexities that can pose significant challenges to both sponsors and their projects.

Another really enjoyable time a couple of days ago with Fiscal Sponsor Conversations, this time talking about how fiscal sponsorship could be impacted by the Proposed DAF Regulations (which we wrote about earlier as it relates to other issues). I am sharing the slides here. Probably impossible to explain DAFs, what the proposed regulations are and mean, and what that has to do with fiscal sponsorship in a single presentation or blog post. But the exercise helped me boil down what my recommendations are for fiscal sponsors to manage this risk.

If you want a deep dive into the regulations, check out our earlier post or slides. If you want to skip to the back of the book, let’s go through what my current takeaways are (none of the below is legal advice, of course, just the rambling of someone who spent too much time putting together slides)…

On a day that happens to also be May Day a/k/a International Workers’ Day, I am left reflecting on how little we, from a legal perspective at least, ask of some of our nonprofit organizations. Yes, this blog has many posts about different rules they need to follow to different types of activities and limits on private benefit. But what do we really ask in terms of commitment to a particular set of values? I think the answer is “next to nothing”.

I was fortunate to present at Fiscal Sponsor Conversations this past week on Model C fiscal sponsorship as applied to filmmaking (and to present there this coming week on how the proposed DAF regulations affect fiscal sponsors). If you’re not familiar with this group and are engaged or interested in fiscal sponsorship, I can give it my strongest recommendation. Fun group, interesting speakers, and, at least when I’m not there, a great rotating cast of presenters. Andrew Schulman of Schulman Consulting and Oliver Hack of Social Good Fund do a great job creating an engaging atmosphere.

Because the topic is something I find interesting and think about often, I thought I’d share my (a bit rudimentary) slides from this presentation and a few random thoughts on filmmaking as a charitable activity, when it feels safe, and when it is pushing the boundaries of how the charitable sector is supposed to operate.

In addition to our own presentations (more to come soon), we want to make sure to call out some of the great work being done by others in the sector.

As a great first example, the exceptional team at the Forefront Project will be conducting a webinar on federal tax law and state law rules regulating ballot measure advocacy by nonprofits and how they might be able to help your organization navigate them.

The Forefront Project does fantastic work providing pro bono legal services to organizations that fight to defend reproductive rights. Given the ruthlessness of the right-wing and the degradation of human rights in this country by the current Supreme Court, organizations devoted to protecting the right to abortion need every tool they can get. And it is no time to shy away from political advocacy and the many ways you can do it without violating any rules.

Please check out the webinar and support organizations like Forefront doing what they can on this issue.

Most of the time, we forget to promote the various presentations we do here at MLC because we are too busy scrambling to get the materials together between calls and client projects. But, I feel particularly fortunate to be presenting with Gene Takagi of Neo Law Group, whose firm and exceptional blog are a big inspiration for us.

And we are speaking about a topic we covered not too long ago on this blog: the proposed DAF regulations and how they might impact sponsors, donors, and grantees.

The presentation is on February 6 at 12pm through Stafford Webinars — check it out here if you are interested (and we have a few complimentary registrations left over, so don’t hesitate to reach out if you’re curious).

Having just returned from the National Network of Fiscal Sponsors (NNFS) Annual Conference, it was heartening to be reminded that so many organizations are doing good work in so many different arenas.

The mood at the conference was broadly hopeful, though several sponsors and speakers flagged that they – like everyone else – are dealing with global uncertainty. From the impact of Supreme Court decisions to changes in Fiscal Sponsors relationships to their Sponsored Organizations – change was very much in the air.

We now have DAF (proposed) regulations!  If that seems like a strange thing for a human being to apply an exclamation point to (it is), consider that there are hundreds of billions of dollars in donor-advised funds (DAFs), with complex rules and prohibitions but barely any real guidance.  The DAF rules were created by the Pension Protection Act on August 17, 2006.  There are human beings driving cars and getting ready to vote in the next Presidential election who have never known a world without the DAF rules.  And today marks the first proposed regulations.

And after today… well… we still have some questions.  But it’s something!

Considering that these regulations have been nearly twenty years in the making, it would be prudent to do a slow and careful review of the regulations and advise on what they portend for the donor-advised fund (DAF) world and the nonprofit sector.  But I find hasty overreactions more fun to write, so here are some key takeaways from these proposed regulations, released today.

When I was a younger person with numerous pretensions and abundant spare reading time, if asked for my favorite to work to revisit regularly, I probably would have cited some bleak French or Russian literature that I may have read one and a half times (generous) but nonetheless decided was core to my personality.

Having traded (some of) those pretensions and (nearly all of) that spare reading time and attention span for the life of a nonprofit tax lawyer, the answer now might be Revenue Ruling 67-4: a 56-year old one-page-long ruling about when publishing counts as an educational activity for 501(c)(3) purposes. Life comes at you fast, etc.

Revenue Ruling 67-4 is not even mentioned in the 501(c)(3) application-denial ruling that caught my eye this week. But it easily could have been. And I think it pairs neatly with something that is cited: the commerciality doctrine, as articulated in Living Faith, Inc. vs. Commissioner, a 32-year old tax case about a religious health food store.

So, join me in a discussion of these two great works of “literature”, and the 501(c)(3) publisher that never was.

So, you've set your sights on that elusive IRS tax-exempt status, only to find yourself entangled in a web of forms, regulations, and uncertainty. We're here to illuminate the paramount significance of an often underestimated factor that can shape the destiny of your tax-exempt aspirations – the administrative record.

Greetings, readers!

I'm thrilled to join the Mill Law Center as the newest attorney and to add extensive experience in the highly regulated charitable fundraising space. Having worked for several years in this specialized field, I've had the privilege of navigating complex legal requirements, ensuring nonprofit organizations comply with regulations, and helping them make a lasting impact.

Throughout my career, I've witnessed the transformative power of philanthropy in changing lives. By closely collaborating with charitable organizations, I've become familiar with the challenges they face in raising funds ethically and transparently while abiding by strict rules across multiple jurisdictions.

I'm here to share insights, practical tips, and thought-provoking discussions on the legal aspects of charitable fundraising. I thought the first topic could be new California fundraising laws regulating charitable crowdfunding.

If you haven’t already heard, my last day at the Mill Law Center (MLC) is June 15, 2023.

It is a bitter-sweet farewell but as the name of the farewell suggests, you can’t have sweet without bitter.

Sometimes the firm announcements are easy; sometimes they are bittersweet.

After June 15, one of the great members of our team, Charli Cleland, will be leaving the firm for a new adventure. If you have been lucky enough to get to work with Charli, you will know him to be a creative, compassionate, and exceptionally skilled lawyer and advocate for our clients. We all feel very fortunate to have gotten to know Charli, and our firm has benefitted immensely from his time here. Both in his work with clients and efforts to help build and shape our firm and culture, Charli’s impact here will resonate with us for a long time. We feel very fortunate to have gotten to work with Charli, and (more than) a bit sad to say goodbye.

Now, the good news! One of Charli’s specialties here has been handling the tricky situations – the conflicts, the drama, the headed-towards-litigation – and bringing them to remarkably productive resolution. So it is fitting that Charli’s next venture is a firm focused on conflict resolution and (when unavoidable) litigation, not only for nonprofits in the midst of conflict but for for-profits and individuals too.

The firm’s name is Cleland & You and I know that we and our clients will continue to work with Charli over the years to come. It’s not easy to find an attorney experienced in conflict resolution and litigation that is also as compassionate and thoughtful as Charli, so we are thrilled to have a referral for clients in those litigation and approaching-litigation situations that extend beyond our work as tax and corporate lawyers.

So, while it’s goodbye for now, it’s also a celebration and good luck wishes to Charli!

More to come in terms of resources for nonprofits in this space soon!

A quick and exciting announcement: as of today, May 15, 2023, we are thrilled to welcome Patrick Hogan to the team. Patrick is based in the Cincinnati area, and licensed in Ohio and Kentucky. Patrick has been practicing nonprofit law in the Cincinnati area for a long time, representing a wide range of nonprofit clients on the sorts of matters we talk about with clients all the time here: corporate governance, regulatory compliance, tax-exemption, and all the other fun nonprofit law topics you can see on this blog.

Patrick’s addition is a huge step forward as we continue to expand our capacity to serve nonprofit clients around the country and address the multi-state compliance needs of nonprofits with distributed workforces and operations. While operating a multistate law firm can be (very!) complicated, we look forward to building out our capacity and presence so we can carry our firm’s mission as broadly as possible. With that in mind, welcome to Patrick!

More to come on this blog soon!