The Law of Fundraising. Bruce R. Hopkins

contributions pledged to and collected by the charitable organization—not just in the particular state but in all jurisdictions in which fundraising took place

       The amount from the solicitation that was or is to be devoted to charitable purposes, as well as the amounts paid or to be paid for fundraising (including the fees of professional fundraisers) and for administration

       Identification of any professional fundraisers and/or professional solicitors utilized

       The net receipts disbursed or dedicated for disbursement within the particular state, by category of expenditure

In addition, a reporting charitable organization usually must file a financial statement covering the preceding accounting period, prepared in conformance with appropriate accounting standards. A few states require, by statute, that the reports be based on the accounting standards and reporting procedures promulgated by the Financial Accounting Standards Board and/or the American Institute of Certified Public Accountants, while a state may mandate by statute use of the standards and procedures set forth in the standards for Uniform Financial Reporting by Voluntary Health and Welfare Organizations. Presumably, the regulatory officials in other states have the discretion to select the accounting principles with which charitable organizations must comply or to develop their own. Thus, the law may provide that each reporting charitable organization must report its expenditures in accordance with standards and classifications of accounts as prescribed by the attorney general, or a comparable official, to effect uniform reporting by organizations having similar activities and programs. These reports may have to be accompanied by an opinion of a certified public accountant.

      The annual report is due at varying times as required by the states' charitable solicitation statutes. The filing may have to be made within 30 days after the close of the accounting period, within 60 days of that period, within 75 days of the period, within 90 days of the period, within five months of the period, or within six months of the period. The regulators in a few states are authorized by statute to require the filing of a report, in some instances in addition to an annual report, by a charitable organization with respect to some other period.

      In some states, the annual report filing requirement, or the extent of it, depends on the level of annual contributions received and/or use of a professional fundraiser and/or professional solicitor. In a few states, a registration or other authorization may be canceled or not renewed until the required annual report is filed.

      The annual report of a parent charitable organization must include information with respect to all of its fundraising affiliated groups.

      A few states provide, by statute, the fee to be paid with the filing of an annual report. In other states, any fees of this nature are set administratively.

      Occasionally, a charitable organization soliciting contributions in a state is required to file financial reports on a quarterly basis during its first year of existence.

There often are separate reporting requirements for professional fundraisers and professional solicitors.⁴⁶

§ 3.5 EXEMPTIONS

Most of the states' charitable solicitation acts provide some form of exemption from their requirements; however, these laws vary widely with respect to the exemptions available for organizations and solicitations. As noted, the basic definition of the term charitable is sufficiently broad to initially encompass all categories of charitable and other organizations. Therefore, these laws are applicable to soliciting religious, educational, health care, and other charitable organizations, unless an exemption is expressly available to them.

These statutory exemptions may be available for an organization because of the nature of the entity or for an organization to the extent it engages in a particular type of solicitation. The exemption may be from the entirety of the statute or merely a portion of it. In some states, an exemption is not effective until the organization applies for it and is recognized by the state to have it.⁴⁷

(a) Churches

Churches and their closely related entities are often exempted from the entirety of the states' charitable solicitation acts.⁴⁸ A typical state's statute accords total exemption to any church or convention or association of churches, primarily operated for nonsecular purposes and no part of the net income of which inures to the direct benefit of any individual.

      In many of these states this exemption is not found within the portion of the statute providing for exemptions but instead is located in the definition of charitable entities.

Some states' charitable solicitation laws grant this exemption only to churches and like organizations that have been classified as such by the IRS. These organizations, however, are not required to obtain recognition of tax-exempt status⁴⁹ and thus some of them do not have this type of classification; technically, then, these organizations are not eligible for the exemption.

(b) Other Religious Organizations

Many states provide an exemption for religious organizations in general from the totality of their charitable solicitation acts. A state law may exclude a corporation sole or other religious corporation, trust or organization incorporated or established for a religious purpose, any agency or organization incorporated or established for charitable, hospital, or educational purposes and engaging in effectuating one or more of such purposes, that is affiliated with, operated by, or supervised or controlled by a corporation sole or other religious corporation, trust or organization incorporated or established for religious purposes, and other religious agencies or organizations that serve religion by the preservation of religious rights and freedom from persecution or prejudice or fostering religion, including the moral and ethical aspects of a particular religious faith.

      It is less common for an exemption for religious organizations to be confined to the registration or other requirements as to preapproval. Some states provide religious organizations with exemption from their registration (and sometimes reporting) or like requirements.

(c) Educational Institutions

      Some states exempt at least certain types of educational institutions (often with emphasis on higher education) from the entirety of their charitable solicitation acts. Usually, this exemption applies only where the institution is accredited. The more common practice is to exempt educational institutions from only the registration or other preapproval (and sometimes reporting) requirements.

      States may, either as an alternative to or in addition to the foregoing approach, exempt from the registration and reporting requirements educational institutions that confine their solicitations to their “constituency.” Thus, a state's law may provide an exemption from registration for any other educational institution confining its solicitation of contributions to its student body, alumni, faculty and trustees, and their families.

      On occasion, a state may exempt solicitations by educational institutions of their constituency from the entirety of their charitable solicitation laws.

Many schools, colleges, and universities undertake their fundraising by means of related “foundations.”⁵⁰ Several states expressly provide exemption, in tandem with whatever exemption their laws extend to educational institutions, to these supporting foundations. Some states exempt, from the registration requirements, parent–teacher associations affiliated with an educational institution, alumni organizations, and student groups.

(d) Libraries