The Law of Fundraising. Bruce R. Hopkins

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the law of fundraising

      2021 Cumulative Supplement

       Fifth Edition

      Bruce R. Hopkins and

       Alicia M. Beck

Copyright © 2021 by John Wiley & Sons, Inc. All rights reserved

      Published by John Wiley & Sons, Inc., Hoboken, New Jersey

      Published simultaneously in Canada

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      Library of Congress Cataloging-in-Publication Data is Available:

      ISBN 978-1-118-65063-9 (main edition)

      ISBN 978-1-119-75788-7 (supplement)

      ISBN 978-1-119-75816-7 (ePDF)

      ISBN 978-1-119-75815-0 (ePub)

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Preface

      This 2021 cumulative supplement is the sixth supplement to accompany the fifth edition of this book. The supplement covers developments in the law of fundraising for charitable purposes as of the close of 2020.

      Congress has been quite active in the realm of nonprofit tax law, including enactment of the Tax Cuts and Jobs Act; some of what has been conjured directly impacts charitable fundraising. These law changes include revisions in the percentage limitations on deductible charitable giving and the way tax-exempt organizations compute their unrelated business taxable income (what we call the bucketing rule). In the aftermath of these revisions in the statutory law, the Department of the Treasury and the IRS have been busy writing guidance that amplifies these statutes. Thus, for example, final regulations to accompany the bucketing rule have been promulgated.

      In addition to the foregoing, the Treasury Department issued final regulations applying the quid pro quo principle in the context of deductible charitable gifts, Treasury also issued final regulations concerning donor disclosure requirements, the IRS has revised its application for recognition of tax exemption as part of the requirement that it be filed electronically, and the IRS published guidance as to when the business expense deduction is available in the charitable giving setting.

      From a federal law standpoint, a significant development in the realm of fundraising occurred when the U.S. Tax Court, in response to considerable litigation on the point, found a way to salvage charitable gift substantiation where the charitable donee has not supplied a gift substantiation letter (or at least not a qualifying one) to the donor, doing so in the context of gifts of easements: the deed of easement may serve as the gift substantiation document. This development is discussed in a section added by this supplement but in essence the court is disregarding as mere boilerplate a provision in the deed reciting consideration by reason of a merger clause.

Also notably, what would have been an important development in the realm of charitable fundraising occurred when the Department of the Treasury and the IRS published proposed regulations to implement the exception to the general charitable gift substantiation requirement. Pursuant to this exception, donee organizations would have been able to file information returns with the IRS that report the required information about contributions. The fundraising community has become rather familiar with the general substantiation rules, using the required contemporaneous written acknowledgment letters as an opportunity to communicate with (as in say thank you to) their donors. If these rules concerning this exception had been implemented, administrators of charitable organizations would have had to make the decision as to whether to stay with the general substantiation regime