Nonprofit Tweets of the Week – 1/23/15

Winter view of Davos, famous Swiss skiing resort

The past week was marked by the President’s State of the Union address and the start of the World Economic Forum in Davos. Have a listen to the Beatles’ Getting Better while perusing our curated nonprofit tweets of the week:

  • NPR News: Missed any part of our #SOTU coverage? See our re-cap, including early analysis and transcript, here:
  • Philanthropy: Why nonprofits are finding much to like in @BarackObama’s tax plan:
  • Suzanne Perry: What’s Next for Nonprofits This Year via @Philanthropy
  • Phil Buchanan: Lack of good journalism about the sector among reasons for continued ignorant sweeping generalizations about NPs.
  • Jeff Schuck: Good thoughtful piece on #nonprofit #overhead by @philCEP along with some commentary by yours truly. Worth 5 minutes: Effective Philanthropy
  • Philantopic: Capacity: The #Philanthropy Buzzword For 2015 That’s Missing @forbes
  • Gene: Great legal resources for nonprofits available at Venable
  • Gene: 7 Reasons to Review Your Nonprofit’s Bylaws Now
  • Nonprofit Law News: IRS Issues Long-Awaited Final Regulations for Charitable Hospitals | by @Polsinelli
  • Bill Gates: .@melindagates and I just released our Annual Letter—we’re making a big bet for the future:
  • Oxfam International: Consumers won’t fall for greenwash. 2015 must be the year for #climate action #wef15
  • Law Cite Sleuth: Our Mini-Theme: Corporate Social Responsibility is Now Legal | Business Law Section

What Is A Donor Advised Fund?

wispering  business information
Donor advised funds are an increasingly popular mechanism for individuals with charitable objectives who want to make a deductible charitable contribution in one year but make charitable distributions (grants) over a period of years. They are often recommended to such individuals as a preferable alternative to starting a private foundation. In general, a donor advised fund (“DAF”) is an account hosted by a sponsoring 501(c)(3) organization, usually a community foundation or a nonprofit affiliate of a financial services company, that is funded by a donor’s contributions in the form of cash, stock, or other assets. While the donor relinquishes legal control over the donation at the time it’s made, the donor retains advisory privileges as to the distribution of the funds and is generally able to benefit from a tax deduction on the contribution in the year in which it is made. In practical terms, the advice is generally followed by the sponsoring organization so long as grants to the identified grantees would not violate applicable laws or be outside of the sponsoring organization’s exempt purpose or mission.


Under the Pension Protection Act of 2006, a DAF is defined as a fund or account:

(i) which is separately identified by reference to contributions of a donor or donors,

(ii) which is owned and controlled by a sponsoring organization, and

(iii) with respect to which a donor (or any person appointed or designated by such donor) has, or reasonably expects to have, advisory privileges with respect to the distribution or investment of amounts held in such fund or account

 IRC Section 4966(d)(2)(A).

All three-parts of the above definition must be met in order for the fund or account to be characterized as a DAF. While the IRS has yet to provide regulations interpreting these requirements, the IRS released a Donor-Advised Funds Guide Sheet Explanation in 2008 that is instructive in a determination of whether a certain fund meets the test:

  1. Separately Identified Fund: In order to be a distinct fund or account for the purposes of prong one, the fund or account must refer to contributions of a specific donor or donors. The Guide Sheet provides that a distinct fund or account of a sponsoring organization does not meet this prong of the definition unless the fund or account refers to contributions of a donor or donors, such as (1) by naming the fund after a donor, or (2) by treating a fund on the books of the sponsoring organization as attributable to funds contributed by a specific donor or donors. While we have no authoritative guidance on what would constitute specific donors in this context, we agree with attorney Greg Colvin’s analysis* based on the legislative history that the term refers to related donors (including any member of the donor’s or donor advisor’s family or a 35% controlled entity of the donor or member of the donor’s or donor advisor’s family). Accordingly, if a sponsoring organization has established a restricted fund or account that is funded exclusively by contributions from a single donor or a group of related donors, regardless of the name of the fund, this requirement may be met. If the restricted fund or account is funded by contributions from a group of unrelated donors (which is often a characteristic of a giving circle), this requirement may not be met. Note, however, that that the number of unrelated donors and the relative contribution amounts of the different donors may impact this analysis.
  2. Owned and Controlled by a Sponsoring Organization: To meet the second requirement, the sponsoring organization, which must be a public charity, generally must have legal ownership and control over the assets following the contribution, and the fund or account must not be owned or controlled by the donor or other such person.
  3. Donor Has Advisory Privileges: Lastly, the donor or donor advisor must have, or reasonably expect to have, advisory privileges over the distribution, which may be evidenced in a written document or through the conduct of the donor, donor advisor, and sponsoring organization. Advisory privileges refers to the right of a donor or donor advisor to provide “noncompulsory recommendations, suggestions, or consultative advice” with respect to how the fund is granted out, but should be understood to be distinct from a donor’s legal right to control the donation.

DAFs are subject to several private foundation-like rules that sponsoring organizations may not ordinarily be subject to as public charities. These rules will be addressed in a follow-up post. Additionally, though long overdue, the IRS is expected to issue regulations on DAFs sometime in the near future. Potential areas of uncertainty that could be addressed include whether the IRS will impose a mandatory payout of funds being held in a DAF, similar to the 5% payout requirement applicable to private foundations, and other such private foundation rules that could reasonably capture DAFs.


Further Reading:

IRS: Donor-Advised Funds

* Adler & Colvin: Is a Fiscal Sponsorship Maintained for a Project by a Public Charity also a “Donor Advised Fund?”


2 Questions Nonprofit Board Members Should Consider on Martin Luther King Jr. Day and Beyond

Eraser changing the word Injustice for Justice

On this Martin Luther King Jr. Day, consider the following two questions:

  • Is social justice a core value of your organization and something you strive for in pursuit of advancing its mission?
  • Is your organization investing its resources consistent with its values in a meaningful way?

How to Be a Racial Justice Hero

Colorlines published a great article a few years back on Martin Luther King Jr. Day: How to Be a Racial Justice Hero, on MLK Day and All Year Long. In the article, the authors note that it’s a good time to reflect on how you can be part of some positive change in the year ahead and suggest asking one institution you routinely interact with one of the following questions:

  • Are the policies and practices, and their impacts, racially inclusive and fair?
  • Who are the stakeholders and how can they be engaged in making change?
  • What concrete equitable changes can you envision and propose?
  • How can you focus your collective power to influence the power-holders?
  • What purposeful action steps could lead to real change and when can you begin?

If you serve on the board of a nonprofit organization, these are great questions for you to consider and discuss with your fellow board members.

Core Values

If social justice isn’t an expressly stated core value of your organization or if your boards haven’t discussed the importance of formally identifying and communicating the organization’s core values, here are some iconic quotes to think about:

“The time is always right to do what is right.”

“Injustice anywhere is a threat to justice everywhere.”

“Our lives begin to end the day we become silent about things that matter.”

“The ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people.”

“Human progress is neither automatic nor inevitable… Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals.”

These discussions may result in difficult days determining what actions are right for your organizations, but by engaging in them, you’ll take your organizations and the communities they serve closer to the promised land.


Nonprofit Tweets of the Week – 1/16/15

Martin Luther King memorial in Washington.

Always inspired by the memorials in Washington DC, particularly around Martin Luther King, Jr. Day. Have a listen to Common and John Legend perform Glory while perusing our curated nonprofit tweets of the week:

  • California Wellness Foundation: 6 Trends to Watch in #2015 via @Philanthropy #philanthropy #nonprofits #giving
  • Philanthropy: Opinion: The @WhiteHouse declares that nonprofits need overhead help @NatlCouncilNPs
  • Robert Eggar: Shrinking IRS struggles to keep up with growing number of tax-exempt charities –
  • Cecily Jackson Zapata: #IRS #nonprofit dark money rules will be so late they won’t impact 2016 election Pro Publica
  • Marc Lane: The Most Important Word for #Nonprofits: Merger via @HuffPostDC @robertegger
  • CalNonprofits: Are there too many nonprofits in the US? Check out “Births & Deaths” in @npquarterly from @GuideStarUSA researcher:
  • Fast Company Exist: Now you can buy your Thin Mints online, as the Girl Scouts undertake a tech overhaul [Ed. It’s notable to see that the online strategy looks to be designed as mission-related and not primarily for commercial purposes to avoid UBIT and related issues.]
  • Ellis Carter: Best of CharityLawyer 2014 –
  • Sustainable Law Group: The Year in Social Enterprise – an Interview with Jim Schorr
  • Acumen: To foster innovation, should government get out of the way? No, says @MazzucatoM, government should be a partner: Foreign Affairs 

Nonprofit Radio: The Fourth Sector

Social Business

l’ll be discussing the “Fourth Sector” – the sector composed of for-benefit organizations – with host Tony Martignetti on Nonprofit Radio this Friday, January 16, at 1:30 pm ET / 10:30 am PT.

For-benefits are a diverse class of organizations that share two main characteristics: 1) they are primarily driven by social and/or environmental purposes, and 2) they earn a substantial portion of their income through business activities. They include sustainable businesses, social enterprises, municipal enterprises, community development corporations, social businesses, and a wide range of other models.

Nonprofits should recognize the importance of understanding and responding to this new “sector” and movement. More and more, individuals (particularly those of younger generations) are becoming sector agnostic in their actions to support social good. They don’t care if they are supporting nonprofits or for-profits so long as the organizations appear to be making a difference to society and/or the environment. Nonprofits must recognize this new form of competition for funds and for talent. And they must recognize the increasing potential for collaboration and alliances with these fourth sector organizations.

I’ll also be sharing some lessons learned from attending and participating in the Mapping the Fourth Sector gathering in Washington DC on January 15, 2015.

This invitation-only gathering will bring together a select group of leading practitioners, scholars, economic developers, government officials, impact investors, funders, and social entrepreneurs to explore the fourth sector and its potential for generating economic, social and environmental impacts. We will examine a range of questions from varying perspectives, with a view toward identifying points of consensus and divergence, and a bias toward collaborative action.

It looks to be a great conversation. I hope you’ll join us for the live broadcast or catch us later on iTunes.


nonprofit radio


Nonprofit Tweets of the Week – 1/9/15

Freedom of Speech

The past week was marked by the horrendous shootings in Paris targeting journalists at a French satirical newspaper Charlie Hebdo and the public response “Je suis Charlie” from those standing in solidarity with the victims and those who willingly risk their security to promote freedom of expression and freedom of the press. Have a listen to Bruce Springsteen and Steven Van Zandt perform We Shall Overcome while perusing our curated nonprofit tweets of the week:

  • Nonprofit Quarterly: TRENDING: 11 Biggest Nonprofit Stories of 2014 and Their Implications for Our Future
  • Matthew Bishop: Ten predictions for philanthrocapitalism in 2015
  • LinkedInForGood: Better investment: #socent or #charity? Debate in NY Times. @SonalRShah @darrenwalker @NYWomensFdn @charitywater
  • Independent Sector: New year and a new way of thinking abt the role of the philanthropic sector and how we work toward a brighter future
  • Nayantara Mehta: New IRS Rules On “Dark Money” Likely Won’t Be Ready Before 2016 Election – Mint Press News
  • Ellis Carter: Is it time for a Legal Audit? #nonprofit
  • Nonprofit Quarterly: Look out for these ten ways to destroy your #nonprofit: #10WaysToKill
  • Living Cities: Throwback to one of our best blogs: “5 Ways city govt & #Philanthropy can partner to disrupt #inequality”
  • Cecily Jackson Zapata: The problem with #venture #philanthropy in #pharma NY Times #nonrprofit
  • Richard LeBlanc: Eight CSR Trends to Watch Out For in 2015 [with various experts including @alicekorngold]
  • Erin Bradrick: Where do for-profit boards fall short? And how do these considerations apply to nonprofit boards? blog post to come!



Nonprofit Board Meetings – Calendar of Agenda Items

Businessman writing agenda

As a supplement to our earlier post, What Issues Should a Nonprofit Board Consider Annually, we have created a calendar of priority agenda items for the board of directors of a hypothetical nonprofit organization, The Futureland Foundation. Generally, priority items should be discussed early in the agenda to best capture the board members’ focus. This calendar is not intended to be an exhaustive list of actions that a nonprofit board should or must take and may not be appropriate for all nonprofits, but rather, it is meant to be a useful tool from which organizations can build their own appropriate calendar of actions.

Assume that the board meets once every two months, the directors elect their successors, and the Futureland Foundation follows a calendar accounting year.


  • Executive Performance Review – Begin discussion of the executive’s performance, the method and timing of the executive’s performance review, and any change in the executive’s compensation. Authorize the executive committee to be responsible for completing and delivering the review.
  • Financial Review – Review and discuss the past year’s financial reports (pro forma) and how the organization’s financial performance informs the plans for the current year and beyond.
  • Generative Topic: “Decide what to decide” – Identify 5 questions the board should ask itself this year.


  • Review of Form 990 – Convene and authorize an ad hoc board committee to review the Form 990 (due May 15), and instruct board members on what they should know about the Form. Additional Information: What Board Members Should Know About Reviewing a Form 990.
  • Program Review – Review and discuss the organization’s major programs and how the organization’s programmatic performance informs the plans for the current year and beyond.
  • Generative Topic: Focus on the board’s performance and areas for improvement.

May (Annual Meeting)

  • Elections - Hold elections of directors and officers consistent with applicable provisions in the bylaws.
  • Legal ComplianceEvaluate past and potential issues regarding employment practices, internal policy compliance, required licenses and permits, nonprofit and 501(c)(3) compliance, facilities and real property, and intellectual property. Ensure all annual filings have been or will be completed and that the organization’s status with the relevant government authorities are all in good standing.
  • Generative Topic: Focus on the organization’s impact in advancing its mission.


  • Review Mission – Reflect on the organization’s mission and purpose statements and compare them against its activities, governing documents, and communications.
  • Board and Committees – Review the board’s composition; appoint and authorize committees, as necessary; delegate duties; discuss board training/development; determine adequacy of oversight and planning activities. Additional Information: Everything You Wanted to Know About Nonprofits & Committees
  • Generative Topic: Focus on the organization’s assets and opportunities.


  • Risk Management – Review internal policies, risk areas, and insurance coverage, and take appropriate follow-up action. Additional Information: Top Ten Legal Risks for Nonprofit Boards.
  • Fundraising/Networking/Communications – Review board’s role in fundraising and developing key contacts for the organization; review board and organizational communications policies.
  • Generative Topic: Focus on the organization’s challenges.


  • Budget – Review and approve the budget for the coming year.
  • Programmatic Plans – Review and amend, as necessary, the organization’s programmatic plans.
  • Generative Topic: Focus on the environment, competition, and opportunities for collaboration.

Starting a Related Nonprofit: 7 Initial Considerations


If your for-profit company is interested in starting a related nonprofit, here are 7 initial considerations to take into account before moving forward:

1. Are you properly intentioned?

A nonprofit exempt under 501(c)(3) of the Internal Revenue Code must have a charitable, educational, or other 501(c)(3)-consistent purpose and must not be operated for the benefit of private interests. The related nonprofit may create benefits for the for-profit but only if the benefits are merely incidental, quantitatively and qualitatively, to furthering of the charitable purpose. The nonprofit may not qualify as tax-exempt under 501(c)(3) if its purpose is to expand the for-profit’s market or to subsidize the for-profit for lower fees charged to certain groups of individuals.

2. Will the nonprofit’s activities be consistent with 501(c)(3)?

This is an often unrecognized concern accompanied by the thought that any activities resulting in some public good should suffice. However, every business, whether nonprofit or for-profit, must provide some public good in order to be viable. And that doesn’t necessarily make the activities of the business charitable, educational, or otherwise consistent with 501(c)(3). A 501(c)(3) nonprofit must serve a charitable class of individuals. It must not provide prohibited private benefits. It must not engage in any political intervention activities (like endorsing candidates for public office). It may only engage in insubstantial amounts of lobbying. And if the nonprofit engages in or supports business activities in competition with for-profits, particularly in a traditionally for-profit space, such activities should be vetted carefully to see if they would be considered unrelated business activities. A 501(c)(3) nonprofit may only engage in an insubstantial amount of unrelated business activities.

3. What types of transactions between the for-profit and related nonprofit are contemplated?

Generally, for-profits that want to create related nonprofits intend to provide funds and/or other assets to the nonprofit. But it’s not uncommon for the for-profit to desire something back in return from the nonprofit. While it may be possible for the nonprofit to pay the for-profit for goods or services (but no more than fair market value) or to provide goods or services to the for-profit for a payment (but no less than fair market value), such transactions and arrangements must be entered into carefully to avoid any violations of law. Consider how to manage transactions with interested parties to avoid prohibited self-dealing, private benefit, private inurement, and excess benefit transactions.

4. Who will own the intellectual property (IP)?

This issue may arise if the nonprofit will be developing and/or using the for-profit’s IP and thereby increasing the IP’s value. Such activities may be in violation of the 501(c)(3) operational test or private inurement/private benefit doctrines. And if any payment is made by the nonprofit to the related for-profit in exchange for a license or ownership of the IP, the issues referenced in consideration 3 above may apply.

5. Will the nonprofit’s board members be able to meet their duty of loyalty?

If the nonprofit’s directors are all owners, directors, officers, employees, and/or significant contractors of the for-profit, this may be a difficult problem, particularly if the nonprofit provides anything of value to the related for-profit. Ideally, the nonprofit will have at least a few independent directors to allow for arm’s-length approval of transactions with the for-profit or that will benefit the for-profit. Remember, board members of the nonprofit, when acting in such capacity, must act in the best interests of the nonprofit above all other interests, including those of the related for-profit.

6. How will the related organizations evidence their separateness?

It will be imperative to keep the for-profit and related nonprofit distinct as separate legal entities with separate boards of directors (even if there are several overlapping directors who serve on both boards), separate officers (even if there are overlapping officers), separate books and accounts, and separate marketing materials. Where the organizations are sharing resources (e.g., facilities, equipment), such arrangements should be entered into at arm’s length by the nonprofit and documented in a resource sharing agreement and/or other agreements. Where the organizations are sharing staff, confer with an appropriate lawyer about possible arrangements. Diligently observing corporate formalities is important in ensuring that the organizations are not treated as a single organization for liability purposes and in ensuring that the nonprofit’s 501(c)(3) status is not jeopardized.

7. Will the nonprofit qualify as a public charity?

Most 501(c)(3) organizations must pass a public support test in order to qualify as a public charity. If such an organization fails the public support test, it will be recognized as a private foundation, a classification that will subject the organization to an additional array of rules and restrictions. If the nonprofit does not seek outside funding, there is a strong possibility that it will be a private foundation. The for-profit must assess this risk and consider whether it would be adversely impacted by its classification as a private foundation or public charity.

We strongly recommend conferring with a knowledgeable expert to guide you through these initial considerations related to starting a related nonprofit. While the goodwill associated with having a related nonprofit may be an important factor, it should not be the driving factor.

Stay tuned for future posts on starting a related nonprofit focused on the nonprofit’s board of directors, prohibited transactions, the private foundation-public charity options, and alternatives including fiscal sponsorship.


A Prediction for the Nonprofit Sector in 2015


2015 what lies ahead

Predictions for the new year – love ‘em or hate ‘em – they’re difficult to do well. Good prognosticators have to go beyond stating obvious trends but without being careless. I’ve tried this once before (see 2008: Policy & Random Predictions by Gene Takagi, Esq.), and it’s instructive to look back. So, for 2015, I’ll note just one obvious, but often dismissed, trend and leave the more sophisticated predictions to others.

Nonprofits will increasingly recognize the importance of recognizing, understanding, and responding to the for-profit social enterprise movement.

While there has been a rise of for-profit businesses legitimately pursuing social goals, it’s still difficult for the public to determine which are the true do-gooders and which are the posers. Yet, they are intriguing and inordinately attractive. Are dollars and resources that otherwise would have gone to charity going to these efforts? Of course!

The New York Times certainly recognizes the issue. The newspaper invited experts to discuss the following issue in it its Room for Debate section on December 30, 2014: Is it better to invest money in a socially responsible business or give to a charitable group?

Nonprofits should recognize that many billions of dollars are involved. Corporations will highlight their social programs but those programs will increasingly be funding their own or other for-profit social good efforts instead of charities (e.g., Foundations will increasingly make use of program-related investments (PRIs), opting for this still little-used vehicle in lieu of making grants. As for individuals, here are some thoughts I offered at last year’s Independent Sector Public Policy Institute:

Impact and how you evidence impact. That’s what donors and funders want to see. And more and more, individuals (particularly those of younger generations) are becoming sector agnostic. They don’t care if they are supporting nonprofits or for-profits doing good. Making a loan through Kiva (which is not a gift to a charity) or supporting a crowdfunding project (which often is not to a charity) are attractive options. Charities have to recognize this new form of competition, and not only for funds, but also for talent.

Does it matter whether funds and assets designated for social good are given to a nonprofit or for-profit?

Absolutely! 501(c)(3) nonprofit organizations are best situated and structured to advance most charitable efforts. They must be organized exclusively for charitable purposes. They must be operated primarily for charitable purposes. They are subject to restrictions against private inurement, private benefit, excess benefit transactions, self-dealing, and violations of charitable trust laws. And they are required to publicly disclose their annual filings with the IRS. But there are other important factors to consider. For example, it’s even more important to determine which specific organizations (whether nonprofit or for-profit) receive those funds and assets. Some organizations just do a better job at advancing their social missions than others. And some for-profits do a better job than many nonprofits.

How should nonprofits respond to the for-profit social enterprise movement?

Nonprofits need to recognize, more than ever, they are operating in a broadened competitive environment for funds and supporters. And they’ll need to determine how best to compete in light of the changing environment. As noted above, evidencing and framing positive impact should be a priority. But the provision of immediate goods or services, in and of itself, should not be underappreciated. Not every program needs to show a long-term impact on achieving a broader social goal. A bandage has a purpose too.

For some nonprofits, collaborations with for-profits will be a key to staying relevant and creating greater impact. There’s nothing new about looking to for-profits for funding, sponsorship, or opportunities for cause-related marketing. And we’ll continue to see growth in such areas. But we’ll also see new forms of collaboration, some of which will work well and others not so much.

Social impact bonds will continue to be experimented with and evolve. Nonprofits will increasingly use for-profit subsidiaries to operate unrelated businesses. We’ll see more joint ventures between nonprofits and for-profits, including outside of the health care and low-income housing areas. And we’ll see more formal cooperative arrangements to increase service delivery to otherwise neglected markets.

These are exciting times full of challenges and opportunities that should not be trivialized as short-term hype. It’s not just technology that’s changing the world. There’s much more going on.


Nonprofit Tweets of the Week – 10th Anniversary Edition

Happy New Years

January 2015 marks our 10th Anniversary at NEO Law Blog. While it’s important and nice to reflect on the past, the beginning of a new year is a great time to get creative and move forward. Have a listen to the Counting CrowsA Long December while perusing our curated nonprofit tweets of the week:

Bonus Tweets highlighting some top resources of the year:

  • CompassPoint: Our most-viewed post from our blog this year: Did it strike a nerve with you as well? [Ed. “Are We Addicted to Urgency?” is a highly recommended read!]
  • Stanford Social Innovation Review: Check out this year’s 10 most popular SSIR articles: #philanthropy #nonprofit #socent
  • Center for Effective Philanthropy: No. 3 most popular blog post of 2014: “Taking Aim” by @PhilCEP [Ed. A good discussion of the shift in thinking about public criticisms of foundations and mega-donors.]
  • Philantopic: Best of PhilanTopic: 2014 Edition #leadership #millennials #nonprofits #philanthropy #socmedia
  • Jesse Lyn Stoner: NEW: 2014 in Review – My Top 10 Blog Posts: [Ed. Great leadership posts from one of Inc. Magazine’s Top 100 Leadership Speakers.]
  • Gene: Links to scholarly articles on social enterprise & hybrid legal entities via Nonprofit Law Prof Blog #socent
  • 99U: Best of 2014: Top Tips, Insights, & Tricks
  • Fast Company Exist: The 9 best visualizations of 2014