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Bruce R. Hopkins. The Law of Fundraising
Table of Contents
List of Tables
List of Illustrations
Guide
Pages
+ website. the law of fundraising
A Letter to the Reader
Preface
CHAPTER ONE Government Regulation of Fundraising for Charity
§ 1.1 CHARITABLE SECTOR AND AMERICAN POLITICAL PHILOSOPHY
§ 1.2 CHARITABLE FUNDRAISING: A PORTRAIT
(a) Scope of Charitable Giving in General
(b) Noncash Gifts Statistics
(c) Online Charitable Fundraising
§ 1.3 BRIEF HISTORY OF GOVERNMENT REGULATION OF FUNDRAISING
§ 1.4 CONTEMPORARY REGULATORY CLIMATE
NOTES
CHAPTER TWO Anatomy of Charitable Fundraising
§ 2.1 SCOPE OF TERM CHARITABLE ORGANIZATION
§ 2.2 METHODS OF FUNDRAISING
(a) Annual Giving Programs
(b) Special-Purpose Programs
(c) Estate Planning Programs
(d) Reasonable Costs of Fundraising
§ 2.3 ROLE OF A FUNDRAISING PROFESSIONAL
(a) Types of Professional Fundraisers
(b) Professional Associations
(c) Accreditation and Certification
(d) Standards of Conduct and Professional Practice
§ 2.4 ROLE OF AN ACCOUNTANT
(a) Generally Accepted Accounting Principles
(b) Financial Reporting Requirements
(c) Financial Management
§ 2.5 ROLE OF A LAWYER
§ 2.6 VIEWPOINT OF REGULATORS
§ 2.7 VIEWPOINT OF A REGULATED PROFESSIONAL
§ 2.8 COPING WITH REGULATION: A SYSTEM FOR THE FUNDRAISING CHARITY (a) Monitoring of Compliance Requirements
(b) Public Relations
(c) Record Keeping and Financial Data
NOTES
CHAPTER THREE States' Charitable Solicitation Acts
§ 3.1 SUMMARY
§ 3.2 DEFINITIONS
(a) Charitable
(b) Charitable Organization
(c) Solicitation
(d) Sale
(e) Contribution
(f) Membership
(g) Professional Fundraiser
(h) Professional Solicitor
(i) Fundraising
(j) Commercial Coventurer
(k) Administrative Agency
§ 3.3 PREAPPROVAL
§ 3.4 ANNUAL REPORTING
§ 3.5 EXEMPTIONS
(a) Churches
(b) Other Religious Organizations
(c) Educational Institutions
(d) Libraries
(e) Museums
(f) Health Care Institutions
(g) Other Health Care Provider Organizations
(h) Membership Organizations
(i) Small Solicitations
(j) Solicitations for Specified Individuals
(k) Political Organizations
(l) Veterans' Organizations
(m) Named Organizations
(n) Other Categories of Exempted Organizations
§ 3.6 REGULATION OF PROFESSIONAL FUNDRAISERS
§ 3.7 REGULATION OF PROFESSIONAL SOLICITORS
§ 3.8 REGULATION OF COMMERCIAL COVENTURERS
§ 3.9 LIMITATIONS ON FUNDRAISING COSTS
§ 3.10 AVAILABILITY OF RECORDS
§ 3.11 CONTRACTS
§ 3.12 REGISTERED AGENT REQUIREMENTS
§ 3.13 PROHIBITED ACTS
§ 3.14 REGULATORY PROHIBITIONS
§ 3.15 DISCLOSURE STATEMENTS AND LEGENDS
§ 3.16 RECIPROCAL AGREEMENTS
§ 3.17 SOLICITATION NOTICE REQUIREMENTS
§ 3.18 FIDUCIARY RELATIONSHIPS
§ 3.19 POWERS OF ATTORNEY GENERAL
§ 3.20 MISCELLANEOUS PROVISIONS
§ 3.21 SANCTIONS
§ 3.22 UNIFIED REGISTRATION
§ 3.23 OTHER LAWS
§ 3.24 PROSPECT OF LAW CHANGES
NOTES
CHAPTER FOUR State Regulation of Fundraising
§ 4.1 REGULATION OF FUNDRAISING COSTS
(a) The Disclosure Dilemma
(b) The Fundraising Cost Percentage Approach
(c) Fundraising Cost Line Item Approach
(d) Floating Average Approach
(e) Pluralization Approach
(f) Average Gift Size Factor
(g) Regulated Disclosure Approach
(h) Factors Affecting Fundraising Costs
(i) Joint Cost Allocations
§ 4.2 POLICE POWER
§ 4.3 REGISTRATION AND LICENSING REQUIREMENTS
§ 4.4 CHARITABLE PURPOSES REVISITED
§ 4.5 FUNDRAISING AS FREE SPEECH
(a) State of Law before 1980 Supreme Court Decision
(b) Free Speech Principles in Fundraising Context
(c) State of Law Subsequent to Supreme Court Decisions
(d) Airport Terminal Solicitations
(e) Door-to-Door Advocacy
(f) Outer Boundaries of Doctrine
(g) Interplay between Fundraising Regulation and Prosecution of Fraud
§ 4.6 DUE PROCESS RIGHTS
§ 4.7 EQUAL PROTECTION RIGHTS
§ 4.8 DELEGATION OF LEGISLATIVE AUTHORITY
§ 4.9 TREATMENT OF RELIGIOUS ORGANIZATIONS (a) Basic Concepts
(b) Constitutionality of Exemption
§ 4.10 OTHER CONSTITUTIONAL LAW ISSUES
§ 4.11 EXEMPTION FOR MEMBERSHIP ORGANIZATIONS
§ 4.12 DEFINING PROFESSIONAL FUNDRAISER AND PROFESSIONAL SOLICITOR
§ 4.13 DIRECT-MAIL FUNDRAISING GUIDELINES
§ 4.14 REGISTRATION FEES
§ 4.15 FUNDRAISING BY MEANS OF THE INTERNET
(a) Internet Fundraising in General534
(b) Charleston Principles
(c) Internet Fundraising—Some Specifics
§ 4.16 CONCLUSIONS
NOTES
CHAPTER FIVE Federal Regulation of Fundraising: Administrative Matters
§ 5.1 FEDERAL REGULATION OF FUNDRAISING: HOW IT BEGAN
(a) History
(b) Special Emphasis Program
(c) Checksheet
(d) Audit Guidance
(e) Perspective
§ 5.2 FUNDRAISING DISCLOSURE BY CHARITABLE ORGANIZATIONS
§ 5.3 RECORD-KEEPING LAW
§ 5.4 CHARITABLE GIFT SUBSTANTIATION LAW
(a) $250 Threshold Law
(b) Donee Substantiation Law
(c) Nondonee Letter Substantiation
(d) Other Substantiation Law
§ 5.5 QUID PRO QUO CONTRIBUTION LAW
§ 5.6 FUNDRAISING DISCLOSURE BY NONCHARITABLE ORGANIZATIONS
§ 5.7 EXCESS BENEFIT TRANSACTIONS LAW
(a) Basic Concepts of Intermediate Sanctions
(b) Excess Benefit Transactions Law as Applied to Fundraising
§ 5.8 UNRELATED BUSINESS LAW
(a) Basic Concepts of Unrelated Income Taxation
(b) Unrelated Income Law as Applied to Fundraising
§ 5.9 COMMENSURATE TEST
(a) Facts of the TAM
(b) Law and Analysis in the TAM
(c) Perspective
§ 5.10 APPRAISAL LAW
(a) Overview
(b) Definition of Qualified Appraisal
(c) Definition of Qualified Appraiser
(d) Substantial Compliance Doctrine
§ 5.11 REPORTING LAW (a) Annual Information Returns
(b) Reporting Law Concerning Property Dispositions
§ 5.12 FEDERAL TAX PENALTIES
(a) Accuracy-Related Penalties
(b) Aiding and Abetting Penalty
(c) Penalty Attributable to Incorrect Appraisals
(d) Abusive Tax Shelter Promotion Penalty
(e) Fraud Penalty
(f) Additional Penalties
NOTES
CHAPTER SIX Federal Regulation of Fundraising: Other Law Matters
§ 6.1 PRIVATE BENEFIT DOCTRINE
§ 6.2 EXEMPTION APPLICATION PROCESS
(a) Recognition of Tax-Exempt Status
(b) Application Procedure
(c) The Application
§ 6.3 LOBBYING RESTRICTIONS LAW
§ 6.4 PUBLIC CHARITY CLASSIFICATIONS
(a) Public Charities in General
(b) Public Support Rules
(c) Supporting Organizations
§ 6.5 SCHOOL RECORD-RETENTION LAW
§ 6.6 FUNDRAISING COMPENSATION LAW
§ 6.7 CHARITABLE DEDUCTION LAW
(a) Meaning of Contribution
(b) Qualified Donees
(c) Gift Properties
(d) Percentage Limitations
(e) Deduction Reduction Law
(f) Twice-Basis Deductions
(g) Partial Interest Contributions
(h) Contributions of Certain Fractional Interests
(i) Contributions of Intellectual Property
(j) Contributions of Vehicles
(k) Noncharitable Donees
§ 6.8 SPECIAL EVENTS AND CORPORATE SPONSORSHIPS (a) Special Events
(b) Donor Recognition Programs in General
§ 6.9 POSTAL LAWS
(a) Introduction
(b) Qualifying Organizations
(c) Nonqualifying Organizations
(d) Application for Authorization
(e) Eligible and Ineligible Matter
(f) Postage Statement
§ 6.10 ANTITRUST LAWS
§ 6.11 SECURITIES LAWS
§ 6.12 FTC TELEMARKETING RULES
§ 6.13 INTERNET COMMUNICATIONS (a) Introduction
(b) IRS Request for Comments
(c) Internet Communications Issues
§ 6.14 HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT LAW
§ 6.15 POLITICAL CAMPAIGN FINANCING
(a) Overview of Federal Election Law
(b) Federal Election Commission
(c) Free Speech Principles Overview
(d) Contribution and Expenditure Limitations
(e) Political Committees
(f) Limitations on Contributions
(g) Corporate Independent Expenditures
(h) Soft Money Restrictions
(i) Disclosure Requirements
(j) Coordinated Communications and Expenditures
(k) Reporting of Independent Expenditures
(l) Establishment and Maintenance of Segregated Funds
(m) Political Campaign Financing and Exempt Organizations
§ 6.16 CHARITABLE FUNDRAISING ORGANIZATIONS
(a) General Principles
(b) Application of Commensurate Test
(c) Other Exemption Issues
§ 6.17 HOUSE OF REPRESENTATIVES MEMORANDUM
NOTES
CHAPTER SEVEN Import of Form 990
§ 7.1 FORM 990 SERIES BASICS
(a) Various Forms
(b) Filing Exceptions
(c) Filing Due Dates
(d) Penalties
(e) Disclosure Requirements
§ 7.2 IRS GUIDING PRINCIPLES
§ 7.3 IMPORT OF FORM 990
§ 7.4 SUMMARY OF PARTS OF FORM 990
(a) Part I (Summary)
(b) Part II
(c) Part III
(d) Part IV
(e) Part V
(f) Part VI
(g) Part VII
(h) Parts VIII–XI
§ 7.5 PREPARATION OF FORM 990, PART I22
§ 7.6 SUMMARY OF FORM 990 SCHEDULES
(a) Schedule A
(b) Schedule B
(c) Schedule C
(d) Schedule D
(e) Schedule E
(f) Schedule F
(g) Schedule G
(h) Schedule H
(i) Schedule I
(j) Schedule J
(k) Schedule K
(l) Schedule L
(m) Schedule M
(n) Schedule N
(o) Schedule O
(p) Schedule R
§ 7.7 FORM 990-EZ
§ 7.8 INSTRUCTIONS
§ 7.9 FEDERAL AND STATE REGULATION OF GAMING
(a) Definitions
(b) Law in General
§ 7.10 SCHEDULE B
(a) Definitions
(b) Reporting Thresholds
(c) Group Returns
(d) Disclosure Considerations
§ 7.11 PREPARATION OF FORM 990 SCHEDULE G
(a) Part I (Professional Fundraising Expenses)
(b) Part II (Fundraising Events)
(c) Part III (Gaming)
§ 7.12 PREPARATION OF OTHER PARTS OF FORM 990
(a) Part I, Line 16a (Professional Fundraising Expenses)
(b) Part IV, Line 14b (Fundraising Outside United States)
(c) Part VIII, Lines 1c, 8a, and 9a (Fundraising Events)
(d) Part IX, Line 11e (Professional Fundraising Expenses)
(e) Schedule B (Information about Contributions)
§ 7.13 PREPARATION OF FORM 990 SCHEDULE M
(a) Introduction
Example 1
Example 2
(b) Questions 1–3 (Works of Art)
(c) Question 4 (Books and Publications)
(d) Question 5 (Clothing and Household Goods)
(e) Questions 6 and 7 (Vehicles)
(f) Question 8 (Intellectual Property)
(g) Questions 9–12 (Securities)
(h) Questions 13 and 14 (Qualified Conservation Contributions)
(i) Questions 15–17 (Real Estate)
(j) Question 18 (Collectibles)
(k) Question 19 (Food Inventory)
(l) Question 20 (Drugs and Medical Supplies)
(m) Question 21 (Taxidermy)
(n) Question 22 (Historical Artifacts)
(o) Question 23 (Scientific Specimens)
(p) Question 24 (Archeological Artifacts)
(q) Questions 25–28 (Other Types of Property)
(r) Question 29 (Forms 8283)
(s) Question 30 (Contribution Holding Period)
(t) Question 31 (Gift Acceptance Policy)
(u) Question 32 (Service Providers)
(v) Question 33 (Explanation of Nonrevenue Treatment)
§ 7.14 ANNUAL FILING REQUIREMENT AND TAX-EXEMPT STATUS
NOTES
CHAPTER EIGHT Prospective Federal Regulation of Fundraising: Proposals and Issues
§ 8.1 INTRODUCTION
§ 8.2 MAJOR LEGISLATIVE PROPOSALS
(a) Wilson Bill
(b) Mondale Bill
(c) Luken Bill
(d) Metzenbaum Proposal
§ 8.3 REGULATORY ISSUES
(a) Necessity of More Rules
(b) Mode of Disclosure
(c) Disclosure of Fundraising Costs
(d) Uniform Accounting Principles
(e) Federal Agency Jurisdiction
(f) Exemptions
(g) Federal Preemption of State Law
(h) Sanctions
(i) Filer Commission Recommendations
(j) Ford Administration Treasury Proposals
§ 8.4 CONTEMPORARY DEVELOPMENTS AND PROSPECTS
NOTES
CHAPTER NINE Standards Setting and Enforcement by Watchdog Agencies
§ 9.1 OVERVIEW OF NONGOVERNMENTAL REGULATION
§ 9.2 ROLE OF AN INDEPENDENT MONITORING ORGANIZATION
§ 9.3 STANDARDS APPLIED BY WATCHDOG AGENCIES
§ 9.4 PHILANTHROPIC ADVISORY SERVICE STANDARDS
(a) Public Accountability
(b) Use of Funds
(c) Solicitations and Informational Materials
(d) Fundraising Practices
(e) Governance
§ 9.5 BBB WISE GIVING ALLIANCE STANDARDS
(a) Board Oversight
(b) Finances
(c) Solicitation Materials
§ 9.6 EVANGELICAL COUNCIL FOR FINANCIAL ACCOUNTABILITY STANDARDS
(a) Governing Board
(b) Financial Statements
(c) Fundraising
§ 9.7 STANDARDS FOR EXCELLENCE INSTITUTE STANDARDS
(a) Legal Compliance
(b) Financial Reporting and Monitoring
(c) Resource Development Plans
(d) Fundraising Costs and Activities
(e) Donor Relationships and Privacy
(f) Acceptance of Gifts
§ 9.8 PANEL ON NONPROFIT SECTOR FUNDRAISING PRINCIPLES
§ 9.9 CHARITY NAVIGATOR STANDARDS
(a) Rating Criteria
(b) Standards
(c) Advisories
§ 9.10 CHARITYWATCH STANDARDS
(a) Evaluation Procedure
(b) “Required” Adjustments
(c) Publication Policy
§ 9.11 STANDARDS ENFORCEMENT
(a) General Principles
(b) Fair Enforcement of Standards
(c) Litigation Potential—A Case Study
§ 9.12 COMMENTARY
(a) Watchdog Agencies in General
(b) Watchdog Agency Functions
(c) Comments on Standards
§ 9.13 A WATCHDOG AGENCY'S RESPONSE TO COMMENTARY
§ 9.14 REPLY TO RESPONSE
§ 9.15 RATING THE RATERS
NOTES
CHAPTER TEN Overviews, Perspectives, and Commentaries
§ 10.1 CHARITABLE FUNDRAISING AND THE LAW
(a) Constitutional Law Background
(b) Fundraising Cost Percentages
(c) Fundraisers and Solicitors: Defining the Difference
(d) Bond Requirements
(e) Other Features
(f) Scope of Statutes
(g) Conclusion
§ 10.2 DEFINING A FUNDRAISING PROFESSIONAL
(a) Definitions
(b) Defining Solicit
(c) Reasons for Avoiding Solicitor Status
(d) Amending the Statutes
§ 10.3 PROFESSIONAL SOLICITORS: ROLE OF TELEMARKETING
§ 10.4 CHARITABLE SALES PROMOTIONS
(a) Terminology
(b) Scope of Regulation
(c) State Laws' Definitions
(d) Forms of Regulation
(e) Some Practical Problems
§ 10.5 REGULATION UNLIMITED: PROHIBITED ACTS
(a) Basic Prohibitions
(b) Extraordinary Prohibitions
(c) Focus on Solicitors
(d) Unusual Provisions
(e) Duplicative Rules
(f) Conclusion
§ 10.6 FUNDRAISER'S CONTRACT
(a) Basic Elements
(b) Specific Elements
(c) Fee Arrangements
(d) Solicitor Status
(e) State Laws
(f) Conclusion
§ 10.7 A MODEL LAW
(a) Introduction
(b) Model Law Elements
(c) Preapproval
(d) Reporting
(e) Definitions
(f) Contracts and Bonds
(g) Compensation
(h) Exemptions
(i) Other
(j) Prohibited Acts
(k) Sanctions
(l) Commentary
§ 10.8 CHARITY AUCTIONS
(a) Charity Auctions as Businesses
(b) Charitable Contribution Deductions—Donors of Items to Be Auctioned
(c) Charitable Contribution Deductions—Acquirers of Items at an Auction
(d) Substantiation Rules
(e) Quid Pro Quo Rules
(f) Sales Tax Rules
§ 10.9 COURT OPINION CONCERNING SLIDING-SCALE REGISTRATION FEES
§ 10.10 CHARITABLE SOLICITATIONS AND THE INTERNET
§ 10.11 CHARITABLE SOLICITATIONS AND FRAUD
§ 10.12 CHARITABLE SOLICITATIONS AND SUBSTANTIATION
(a) Summary of the Facts
(b) Law
(c) Analysis
(d) Commentary
§ 10.13 UNCONSTITUTIONALITY OF STATE DONOR IDENTITY DISCLOSURE
§ 10.14 FUNDRAISING AND DONOR-ADVISED FUNDS
(a) Statistical Portrait
(b) Donor-Advised Fund Law Basics
(c) Commentary
§ 10.15 SOME PROPOSALS FOR RELIEF
(a) Model Law
(b) Reciprocal Agreements
(c) Uniform Annual Report
(d) Other Forms of Uniformity
§ 10.16 A LOOK AHEAD
NOTES
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