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

to further ensure that its unique characterization does not spread further (and to keep the IRS happy), the SBA concludes that the guidance under this FAQ “is solely for purposes of qualification as a ‘nonprofit organization’ under section 1102 of the CARES Act and related purposes of the CARES Act, and does not have any consequences for federal tax law purposes.”⁶³

Subsequently, on December 27, 2020, the President signed into law the Consolidated Appropriations Act, 2021 (“CAA”), which included an additional $900 billion in stimulus relief to address the continuing economic effects of the COVID‐19 pandemic.⁶⁴ The Act included the Coronavirus Response and Relief Supplemental Appropriations Act, 2021 (Division M of the CAA), along with additional COVID‐19 relief provisions (Division N of the CAA). The COVID‐19 relief provisions included additional Paycheck Protection Program funding and the opportunity for second‐draw loans; additional stimulus checks for individuals of $600; extended increased federal unemployment benefits; and funding for vaccines, testing, and healthcare providers.

NOTES

      1 ^16.1 See Additional Statutory Requirements for Hospitals, § 26.2.

      2 ^16.2 IRC § 509(a)(1), § 170(b)(1)(A)(iii).

      3 ^16.3 IRC § 509(a)(2).

      4 ^16.4 For a useful explanation of these issues and the IRS's issue indicators and audit tips for revenue agents examining them, see the related IRS Issue Snapshot, https://www.irs.gov/charities-non-profits/hospital-definition-under-irc-sections-509a1-and-170b1aiii-versus-irc-section-501r.

      5 ^44.1 IRC § 115.

      6 ^44.2 Rev. Proc. 95‐48, 1995‐2 C.B. 418.

      7 ^44.3 IRC § 403(b).

      8 ^44.4 A governmental unit, including a political subdivision, is not treated by the IRS as a dual status entity because it cannot qualify for charitable status.

      9 ^44.5 Rev. Proc. 95‐48, 1995‐2 C.B. 418.

      10 ^44.6 Reg. § 4958‐2(a); 66 Fed. Reg. 2147.

      11 ^44.7 See Notice 2011‐52, I.R.B. 2011‐30 and the Preamble to the IRS § 501(r) regulations at 79 Fed. Reg. 78957.

      12 ^44.8 Rev. Proc. 2019‐5, 2019‐1 I.R.B. 230 § 3.01(12).

      13 ⁵⁷ https://www.govinfo.gov/content/pkg/PLAW-116publ136/pdf/PLAW-116publ136.pdf.

      14 ⁵⁸ Colin Scholl et al. v. Steven Mnuchin et al.; No. 4:20‐cv‐05309 (DC ND CA, Oct. 14, 2020).

      15 ⁵⁹ FAQ 42 (May 3, 2020), https://www.sba.gov/document/support-faq-lenders-borrowers.

      16 ⁶⁰ See § 26.10.

      17 ⁶¹ See IRC § 501(r), § 26.10.

      18 ⁶² FAQ 42, n. 16.

      19 ⁶³ FAQ 42.

      20 ⁶⁴ https://www.govinfo.gov/content/pkg/BILLS-116hr133enr/pdf/BILLS-116hr133enr.pdf.

CHAPTER NINE Managed Care Organizations

        § 9.3 Commercial‐Type Insurance Providers

        § 9.5 Recent Developments

§ 9.3 COMMERCIAL‐TYPE INSURANCE PROVIDERS

       p. 279, note 102. Insert at end of note:

      ; FY 1997 Exempt Organizations Continuing Professional Education Technical Instruction Program Textbook, “Insurance: The Rule of ’86.”

       p. 287, third complete paragraph, next to last line. Delete February 2013 and insert November 2017.

§ 9.5 RECENT DEVELOPMENTS

       p. 289, note 139. Insert at end of note:

      The IRS administratively suspended application of the prohibition against the substantial provision of commercial‐type insurance by charitable and social welfare organization entities in HMO examinations in 2003.

       p. 290. Insert before second full paragraph:

In October 2017, the IRS published in its e‐newsletter a series of Audit Technique Guides (ATG) on various topics containing material that had previously only been available in the Internal Revenue Manual.^145.1 The IRS moved the material to these guides, used by IRS Exempt Organization examiners, to improve access and availability.

One ATG addresses examinations of Health Maintenance Organizations.^145.2 It states that the purpose of audits of HMOs is to determine whether the organization qualifies for exemption as a charitable organization or as a social welfare organization; and whether the HMO is precluded from qualifying for exemption by the prohibition against the substantial provision of commercial‐type insurance by such entities. The audit also determines whether any part of the organization's activities is subject to tax as unrelated business activities or as activities of an insurance company.

      The ATG provides an explanation of the activities of HMOs, including the difference between direct provider and arranger HMOs that has been central to the ability of HMOs to qualify as charitable organizations in the IRS's view. It also discusses the role of physicians within the HMO structure, HMO contracts with hospitals and enrollment in an HMO, HMO premiums, and HMO governance.