Georgia Non-Profit and Religious Organizations

Undocumented Persons and the Ministry


Charles R. Bridgers : May 19, 2013 11:11 am

Ministries are often  faced with decision regarding undocumented immigrants. Knowingly hiring a person who is undocumented is illegal. Beyond the hiring issues, the most likely source of issues is Georgia’s Illegal Immigration Reform and Enforcement Act of 2011 (as amended in 2013) (Georgia’s Immigration Law).

Section 7 of Georgia’s Immigration Law, O.C.G.A.§  16-11-200 et.seq.is (arguably) the most onerous part of the statute. Section 7 creates three distinct state criminal violations: (1) transporting or moving an illegal alien, O.C.G.A. § 16-11-200(b); (2) concealing or harboring an illegal alien, id. § 16-11-201(b); and (3) inducing an illegal alien to enter the state of Georgia, id. § 16-11-202(b). Each of these offenses requires that the accused also be engaged in another criminal  activity, and each further requires that the accused know of the illegal status of the subject.

Section 7 was attacked on constitutional grounds in federal court. The District Judge (the trial level) found Section 7 unconstitutional and entered a preliminary injunction against its enforcement. The Eleventh Circuit Court of Appeals (the appellate court that reviews cases from Georgia) examined that issue in Georgia Latino Alliance, et.al., v. Governor of Georgia, et.al., 691 F.3d 1250 (11th Cir. 2012). The Court of Appeals agreed with the trial judge and found that the law attempted to criminalize behavior not criminal under federal law. Echoing the decision of the U.S. Supreme Court in Arizona v. U.S., 132 S.Ct. 2492 (2012), the 11th Circuit found that Section 7 was preempted by federal law.  Because it is preempted, Section 7 is unconstitutional and the 11th Circuit struck it down. The trial judge issued a permanent injunction against Section 7 shorty afterward basically taking Section 7 off the books permanently.

Section 8 of the immigration law, O.C.G.A.§  17-5-100 et.seq.,  allows a Georgia police officer to investigate immigration status (including asking for documentation of legal status) when investigating another crime.  The 11th Circuit Court of Appeals, in a decision similar to the U.S. Supreme Court in the Arizona case, did not find that such a statute was necessary unconstitutional but remanded to the district court (trial level) for further proceedings. That issue is still being briefed and has yet be decided.

Georgia’ Immigration Law, as passed in 2011 and updated in 2013, imposes additional requirements. In summary:

First, the bill requires all public employers, their contractors and subcontractors to verify the work eligibility and “lawful presence” of all new employees though the online federal work authorization program called E-Verify. In addition, under Section 3 public employers must provide an annual report to exhibit compliance with the bill. Local government entities that do not comply with the immigration sanctuary policies “shall be subject to the withholding of state funding or state administered federal funding,” with the exception of funds listed under another code. Further, foreign passports alone are not considered a secure and verifiable identification document and cannot be used to obtain public benefits. SB 160 prevents undocumented immigrants from securing an adult education, driver’s license, grants, public housing, retirement and other listed federal, state and local benefits.

Importantly for most ministries, however, the bill does not penalize those who knowingly act in violation of the identification requirement by supplying basic human necessities to undocumented immigrants.

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Who Can Conduct a Marriage Ceremony?


Charles R. Bridgers : April 12, 2013 10:18 am

I was recently asked about the standards for conducing a marriage ceremony in the State of Georgia.

Georgia issues marriage licenses through the Probate Court. (“If one of the persons to be married is a resident of this state, the license may be issued in any county of this state. If neither the male nor the female to be married is a resident of this state, the license shall be issued in the county in which the ceremony is to be performed.” O.C.G.A.§  9-3-30.) The license authorizes the officiant to proceed. Officiants are authorized as follows:

O.C.G.A.§  9-3-30 (c):  The license shall be directed to the Governor or any former Governor of this state, any judge, including judges of state and federal courts of record in this state, city recorder, magistrate, minister, or other person of any religious society or sect authorized by the rules of such society to perform the marriage ceremony; such license shall authorize the marriage of the persons therein named and require the Governor or any former Governor of this state, judge, city recorder, magistrate, minister, or other authorized person to return the license to the judge of the probate court with the certificate thereon as to the fact and date of marriage within 30 days after the date of the marriage. The license with the return thereon shall be recorded by the judge in a book kept by such judge for that purpose.

Georgia, like most states, defers to the rules and polity of the “religious society or sect” when determining who may officiate at a ceremony.

 

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Scary Example of Individual Liability for Board Members


Charles R. Bridgers : March 28, 2013 10:37 am

A recent article in the Chronicle of Philanthropy demonstrated the perils of providing lax oversight in the non-profit world:

“Nonprofit board members who think they don’t face any risks if they provide lax oversight should pay close heed to the $5.5-million price tag the New York attorney general just put on inattentiveness. Every board member should understand the strong message government officials were sending about the level of diligence expected from them, especially when it comes to conflicts of interest involving top executives.

. . .

Board members were told to pay a total of $1-million of that price tag, both as a penalty for their breach of fiduciary duty and to make up for the pay they received. Even more powerful is this message: The board members were told to resign and were banned for life from serving in any fiduciary role at any New York nonprofit.”

http://philanthropy.com/article/Price-of-Board-Inaction-/136669/

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New Changes for Form 990


Charles R. Bridgers : March 18, 2013 10:36 am

This chart summarizes significant changes to the Form 990, Form 990-EZ, schedules and instructions for tax year 2012.

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Current IRS Concerns for Exempt Organizations: Backlog Reduced but Increasing Again


Charles R. Bridgers : June 3, 2012 9:57 am

The Director of Exempt Organizations for the IRS, in a recent speech, revealed several matters of concern for the Service.

Fifth, the IRS receives approximately 60,000 applications for exemption each year. In the past few years, they divided the forms into four categories to streamline the review and application process.

  • approve immediately—application fully completed;
  • approve after seeking minor additional required information;
  • need substantial additional information to complete application; and
  • need further development by an IRS agent to determine if the application meets the requirements for tax-exempt status.

This reduced backlog but the backlog is now increasing with a larger number of organizations who recently lost tax exempt status because of non-filing of forms making new applications.

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Current IRS Concerns for Exempt Organizations: File the Correct Form


Charles R. Bridgers : May 25, 2012 9:56 am

The Director of Exempt Organizations for the IRS, in a recent speech, revealed several matters of concern for the Service.

Fourth, if you file a 990-N, it is not necessary to file another version of the Form 990. Understand what form you are required to file and do so.

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Current IRS Concerns for Exempt Organizations: Excess Benefit Questions


Charles R. Bridgers : May 15, 2012 9:56 am

The Director of Exempt Organizations for the IRS, in a recent speech, revealed several matters of concern for the Service.

Third, the Service continues to review excess benefits issues in Schedule “O”. Excess benefits to insiders of the organization can lead to excessive penalties. The IRS wants to know what internal controls or good governance practices were present before the excess benefits transactions took place and if such practices were modified to make sure that the organization’s assets would be protected in the future

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Current IRS Concerns for Exempt Organizations: Good Governance and Tax Compliance


Charles R. Bridgers : May 10, 2012 9:55 am

The Director of Exempt Organizations for the IRS, in a recent speech, revealed several matters of concern for the Service.

Second, in a non-scientific survey, IRS found that “good governance”  is associated with “tax compliance.”

Organizations are more likely to be compliant if they:

  • have a written mission statement,
  • always use comparability data when making compensation decisions,
  • establish procedures for the proper use of charitable assets, and
  • have the Form 990 reviewed by the entire board of directors.

This may be an more association than causation but it reinforces that if you pay attention to all aspects of your governance, the organization is more likely to stay out of trouble.

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Current IRS Concerns for Exempt Organizations: Social Security Numbers


Charles R. Bridgers : May 3, 2012 9:53 am

The Director of Exempt Organizations for the IRS, in a recent speech, revealed several matters of concern for the Service.

First, No social security numbers should be included on  Form 990s or any schedule attached to the form. These forms are  public and can be found online.  Leave out the SSN’s to To prevent identity theft and to preserve privacy.

 

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Designated Benevolence Giving


Charles R. Bridgers : March 6, 2012 3:06 pm

Questions often arise about whether a gift given through a benevolence or “Good Samaritan” fund to a specific individual may be tax deductible. The gift is not illegal, the only question is whether the donation can be deducted by the donor. The IRS has addressed this issue the several tax rulings, including:

  • 2002 Letter Ruling 200250029
  • 2005 Letter Ruling 200530016
  • 1987  Letter Ruling 8752031

In sum, if a gift is designated for a specific individual, it is not tax deductible even if it first flows through a benevolence type fund set up by a tax exempt organization.  This is why gifts made to specific person after a disaster or as a “purse” to a departing pastor are not deductible. Gifts that flow through a benevolence type fund have the best chance to be tax deductible if that gift is intended for the use of the organization and not as a gift to an individual. The test in each case is whether the organization has full control of the donated funds, and discretion as to their use, so as to insure that they will be used to carry out its functions and purposes.

The more difficult question is whether a deduction is allowed if the gift eventually goes to a beneficiary that is “suggested by the donor.” In some cases it may be possible for a donor to deduct a designated contribution to a benevolence fund if the circumstances clearly demonstrate that the designation was a mere suggestion or recommendation and that the donor intended the donation to be to, or for, the use of the community and subject to its control rather than to the control of the designated individual.  

A community can adopt a written policy that will increase the chance that a deduction may be deductible. This written policy should state that the organization makes the final decision about the beneficiaries of the fund regardless of any suggestions.  This is a tricky area and a community should never guarantee that a gift that flows to an individual is tax deductible.

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