The Law of Tax-Exempt Healthcare Organizations. Bruce R. Hopkins

IRS Audits of Tax‐Exempt Organizations: Policies, Practices, and Procedures (2008) IRS Audits 2. The Law of Fundraising, Fifth Edition (2013) Fundraising 3. The Law of Tax‐Exempt Organizations, Twelfth Edition (2019) Tax‐Exempt Organizations 4. The Law of Intermediate Sanctions: A Guide for Nonprofits (2003) Intermediate Sanctions 5. Planning Guide for the Law of Tax‐Exempt Organizations: Strategies and Commentaries (2004) Planning Guide 6. The Tax Law of Private Foundations, Fifth Edition (2018) Private Foundations 7. Starting and Managing a Nonprofit Organization: A Legal Guide, Seventh Edition (2017) Starting and Managing 8. The Tax Law of Charitable Giving, Fifth Edition (2014) Charitable Giving 9. The Tax Law of Unrelated Business for Nonprofit Organizations (2005) Unrelated Business 10. Tax‐Exempt Organizations and Constitutional Law: Nonprofit Law as Shaped by the Supreme Court (2012) Constitutional Law

      The second, third, sixth, and eighth of these books are annually supplemented. Also, updates on all of the foregoing subjects (plus The Law of Tax‐Exempt Healthcare Organizations) are available in Bruce R. Hopkins' Nonprofit Counsel, a monthly newsletter, also published by Wiley.

CHAPTER ONE Tax‐Exempt Healthcare Organizations: An Overview

      1  § 1.2 Defining Tax‐Exempt Organizations

      2  § 1.5 Charitable Healthcare Organizations

      3  § 1.8 Promotion of Health

      4  § 1.10 ABLE Programs

§ 1.2 DEFINING TAX‐EXEMPT ORGANIZATIONS

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The U.S. Supreme Court, reflecting these principles, wrote that a “nonprofit entity is ordinarily understood to differ from a for‐profit corporation principally because it ‘is barred from distributing its net earnings, if any, to individuals who exercise control over it, such as members, officers, directors or trustees.’”^23.1 The Court has discussed the concept of nonprofit organizations on other occasions.^23.2 (Of course, before there can be a nonprofit organization or a tax‐exempt organization, there must first be an organization.^23.3)

§ 1.5 CHARITABLE HEALTHCARE ORGANIZATIONS

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Meanwhile, state courts continue to challenge the qualification of hospitals as charitable organizations for real property tax exemption purposes. In a 91‐page decision that describes the current structure and operations of the majority of hospitals in the United States, the New Jersey Tax Court revoked the property tax exemption for Morristown Memorial Hospital. The court concluded that “[i]f it is true that all non‐profit hospitals operate like the Hospital in this case…then for purposes of the property tax exemption, modern non‐profit hospitals are essentially legal fictions. Clearly, the operation and function of modern non‐profit hospitals do not meet the current criteria for property tax exemption under [New Jersey law.]” AHS Hospital Corp., d/b/a Morristown Memorial Hospital v. Town of Morristown, 2015 BL 206190 (N.J. Tax Ct. 2015). See generally, Paff, “Is Your Nonprofit Hospital's Property Tax Exemption Safe?,” Bloomberg Daily Report for Executives, August 25, 2015.

§ 1.8 PROMOTION OF HEALTH

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      In some instances, activities that would seem to promote health are insufficient to support qualification as a charitable organization. An organization was formed to promote sports, recreation, health, and fitness through church leagues and tournaments, exercise programs, and recreational activities. The organization's goal was to organize adult and youth athletic competitions. Its proposed sources of financial support were ticket sales, advertising income, auctions, annual fundraisers, and donations.

The IRS determined that the organization did not qualify as a charitable organization because it did not meet the organizational or operational tests for charitable status. The IRS focused on the fact that the bulk of the organization's activities were geared toward encouraging sports, recreational, and social interaction between adults. These are not exempt purposes in the IRS's view. Sports and social and recreational activities are not considered exempt activities. The IRS distinguished other guidance in which sports were provided to children under the age of 18. Recreational sports for adults are not considered charitable or educational purposes, according to the IRS.^118.1

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§ 1.10 ABLE PROGRAMS

The newest category of tax‐exempt organization, modeled somewhat on the state‐sponsored qualified tuition program,¹³⁷ is the ABLE program.¹³⁸ This is a program established and maintained by a state, or agency or instrumentality of a state, under which a person may make contributions for a tax year, for the benefit of an eligible individual, to an ABLE account that is established for the purpose of meeting the qualified disability expenses of the designated beneficiary of the account.¹³⁹ A designated beneficiary may have only one ABLE account.¹⁴⁰ A beneficiary must be a resident of the state that established the program or a resident of a contracting state.¹⁴¹ An interest in an ABLE program may not be used as security for a loan.¹⁴²

An eligible individual is an individual entitled to benefits based on blindness or disability under the Social Security Act, where the blindness or disability occurred before the date on which the individual