CALIFORNIA

Due to recent changes in California’s law, charities that are delinquent with the California Attorney General (AG), California Franchise Tax Board (FTB) or the Internal Revenue Service (IRS) are effectively being shut out of charitable fundraising platforms, including, but not limited to, Facebook and Blackbaud.  The law prohibits fundraising platforms from allowing charities that are delinquent with any of these agencies to fundraise or receive donations in California via their platform. This effectively shuts down a significant amount of online fundraising activities not just in California, but in all states, due to platforms’ compliance with the California law.  Moreover, since the agencies may take three to six months or even longer to process and confirm the correction of the delinquencies, this change is seriously impacting many charities’ ability to fundraise for an extended period of time.  

Delinquencies with the AG’s Registry of Charities and Fundraisers typically occur when a charity’s registration has expired and it has not submitted renewal documents, or because a deficiency has been identified upon the state’s review of the renewal registration.  In either instance, the delinquency status is effective immediately. The AG has changed its procedure and is no longer sending notices of deficiency with time to cure. Similarly, missed filings with the FTB will cause a charity to be included on its revocation list, which requires the platforms to shut down online solicitation or receipt of donations for the charity in California. 

It is imperative that all filing requirements in California are timely, complete, and accurately met.  If your organization is a California charitable corporation, or conducting operations in the State, it must submit annual filings with the FTB in addition to the annual filings with the AG’s Registry of Charities and Fundraisers.  All charities which solicit contributions in California, unless exempt, have an annual registration requirement with the AG. 

For more information on the California law, please see Has Your Organization Been Blocked by Charitable Fundraising Platforms? It is likely due to California’s new “Good Standing” requirement.

TENNESSEE

Effective July 1, 2024, charities soliciting in Tennessee must file a copy of any applicable commercial co-venturer agreement, along with a state form, at least five (5) business days before the promotion begins in the state.  Applicable commercial co-venturer agreements include those in which the territory of the promotion includes Tennessee.  

UTAH

Following a recent change to Utah’s Charitable Solicitation Law, effective May 1, 2024, charitable organizations will no longer be required to submit an annual registration with the Utah Division of Consumer Protection.  To this end, we have been notified by the Consumer Protection Division that as of March 29, 2024, it is no longer accepting registrations from charitable organizations.  With the elimination of this charitable registration requirement, Utah has also eliminated the requirement to pre-notify the state about charitable sales promotions taking place in Utah.  

The changes in Utah law also require Utah nonprofit corporations or foreign nonprofit corporations doing business in Utah to file their most recent Form 990 as part of their annual corporate registration filing process, unless the organization is exempt from filing a 990 with the IRS. This change will take effect in January 2025 and the Division will promulgate new Administrative Rules reflecting this change. 

Please see our recently updated charts

Charitable Solicitation Registration and/or Filing Requirements

Charity State Registration, Reporting and Contract Filing Obligations Relating to Commercial Co-venturer (CCV) Promotions

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The CCPA’s broad privacy requirements are entirely new, and are certainly among the strictest privacy laws in the United States. It is important to note that CCPA is not a replacement for other existing California privacy law – all of those laws remain  in effect. Here the focus is on CCPA.

Does it Apply to Your Company?
CCPA applies to any for profit company in the world which collects personal data, and

1. Has annual gross revenues of at least $25 million; or
2. Obtains personal information of at least 50,000 California residents, households, and /or devices per year; or
3. Derives at least 50% of its annual revenue from selling California residents’ personal information

What to Do to Prepare
To comply,  companies will have to adopt a variety of new measures, including:

• Draft and post a comprehensive privacy notice ( send me an email request for a more detailed list of elements to include)
• Conduct a data inventory to “map” the use of California residents personal data and instances of “selling” data
• Implement procedures to meet the new individual rights for data access, deletion and opting-out
• Update all vendor agreements with third-parties who may be processing such data on behalf of the business

What are the Penalties for Non-Compliance?
Non-compliance with CCPA puts a company at risk for large fines. The Attorney General can levy fines of  up to $7500 per violation, and make the party subject to “private actions” from California residents.

Jon Dartley, Esq., 212.889.0575 ext. 224
jon@perlmanandperlman.com

DISCLAIMER:
These materials were prepared for informational purposes only. The information contained herein is general in nature and may not have application to particular factual or legal circumstances. These materials do not constitute legal advice or opinions and should not be relied upon as such. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship. Recipients of this information should not act upon any information in this article without seeking professional counsel.

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Delaware is Corporation-Friendly

Delaware is a corporation-friendly state. Delaware statutes are very flexible when it comes to formation. Where New York might require three directors for a new nonprofit, Delaware only requires one. Unlike New York, California, Massachusetts, and other states with more complex nonprofit statutes, Delaware doesn’t have a nonprofit-specific statute nor does it impose complex regulations or restrictions on a nonprofit’s activities. Because Delaware nonprofits are formed under the same statute as for-profit non-stock corporations, governance and annual reporting are fairly straightforward and flexible.

Delaware also has a thoroughly developed body of corporate law. Delaware is an incredibly popular state for all types of entities, so many corporate attorneys have a working familiarity with Delaware corporate law even if they practice elsewhere.

Nonprofit Statutes Can be Onerous

Numerous states, including New York, California, and Massachusetts, have specific statutory regimes that govern nonprofits. In each of New York, California, and Massachusetts, a nonprofit must obtain permission to merge, sell its assets or dissolve. New York’s requirements related to a nonprofit’s internal governance can be complicated – they include audit requirements, restrictions on who may serve as the chair of the board, and required procedures for managing conflicts of interest. Certain kinds of real estate transactions may require regulatory approval. Electronic voting and meetings are prohibited or discouraged. Even the timing and content of board notices may be regulated. Most of the requirements are applicable to nonprofits of every size and can be challenging for nonprofits that don’t have large infrastructure and budgets.

Delaware has no such system of regulations. The Delaware Attorney General does not review and pre-approve corporate transactions. There is no required regulatory approval for real estate transactions. Meeting requirements are flexible. A Delaware nonprofit that chooses to dissolve can do so using the same simple process available to other Delaware non-stock corporations.

Most of New York’s, California’s, and Massachusetts’s most complex and onerous regulations are inapplicable to nonprofits that are formed elsewhere regardless of whether they operate, conduct activities, or solicit funds in those states. Foreign nonprofits are still required to register with charity regulators to solicit funds or hold assets in those states, and in many cases, to submit annual filings. A Delaware nonprofit soliciting funds in New York is not required to comply with New York’s myriad of internal governance requirements but must register with New York’s Charities Bureau and submit an annual filing called the CHAR500.

Best Practices Are Great – But Should Work for the Organization

To be clear, many of the requirements found in nonprofit-specific statutes are good for nonprofits. Statutes in states such as New York, California, and Massachusetts help ensure a nonprofit is well-run and responsive to its donors, the populations it serves, and the taxpayers. But many nonprofit-specific statutes are written as a one-size-fits-all solution in a nonprofit world filled with organizations of varying sizes run by individuals with varying levels of expertise. Nonprofits should consider adopting policies which help the organization avoid conflicts of interest, ensure the board is well-run, place proper financial controls on employees and officers, and help guarantee that the nonprofit succeeds in achieving its charitable mission. But those policies should reflect the needs of the particular nonprofit in question and may vary greatly from organization to organization. By incorporating in Delaware, a nonprofit can retain the flexibility to tailor its governance to meet its unique needs.

When Away From Home, Know The Rules

A nonprofit incorporated in Delaware (or any other state) is still subject to oversight by state charity officials in the states where the nonprofit operates. If a nonprofit operates in a state with active charity regulators, the nonprofit must remain vigilant of its registration and reporting requirements, as well as rules that govern charitable solicitation. Local rules regarding employment, banking, insurance, contracts, and liability still apply even if the group is incorporated in Delaware. In recent years we have seen a growing number of charity officials taking an active role in encouraging nonprofits to adopt “best practices” by bringing enforcement actions against groups that the regulators perceive as poorly-run. Therefore, even a Delaware nonprofit should be familiar with the rules in every jurisdiction where it operates – competent counsel is almost indispensable.

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