Tuesday, August 16, 2011

Specific Questions Regarding Local Laws

IV. Specific Questions Regarding Local Law
The following discussion addresses the extent to which Indian not-for-profit entities satisfy the requirements for a charitable equivalency determination under section 501(c)(3) of the U.S. Internal Revenue Code of 1986, as amended (hereinafter the "Code").  The discussion is limited to the minimum requirements under Indian law; the governing documents of charitable entities may of course choose to include further provisions, which may satisfy the requirements of an equivalency determination.  U.S. private foundation donors should, therefore, also review a potential grantee's governing documents for provisions relevant to an equivalency determination.  

A. Inurement
Public charitable trusts must benefit a large class of beneficiaries and must be for the public benefit.  Moreover, trustees of public charitable trusts may not engage in self-dealing.  Despite the clear charitable intent of a public charitable trust, absent a provision in the trust deed specifically prohibiting private inurement, it is unclear whether public charitable trusts satisfy the prohibition on private inurement in Code section 501(c)(3). 

The Societies Registration Act 1860 does not prohibit the inurement of any earnings of the society to any private shareholder or individual.  

The Indian Companies Act, 1956, section 25 specifically provides that no profits, if any, or other income may be distributed by way of dividends to its members. 

B. Proprietary Interest 
Whether an individual may have a proprietary interest in a not-for-profit entity relates to the issue of inurement.  Trustees of a public charitable trust hold trust assets on behalf of the trust.  Thus, although trustees have legal title to the trust's assets, they hold these assets for the beneficiaries of the trust, not for themselves.  Members of the managing committee or governing council of a society or section 25 company hold the assets of a society or section 25 company. 

C. Dissolution
Indian public charitable trusts are generally irrevocable.  If a trust becomes inactive due to the negligence of its trustees, the Charity Commissioner may take steps to revive the trust.  Furthermore, if it becomes too difficult to carry out the objects of a trust, the doctrine of cy pres, meaning "as near as possible," may be applied to change the objects of the trust.  Thus, it appears donors could feel fairly secure in the event the trust can no longer accomplish its initial purposes; the trust's purposes would be changed to another similar public charitable purpose, or in the unlikely event of a distribution or winding up of a trust due to changed circumstances, the trust assets would be used for similar charitable purposes. 

Unlike trusts, societies and section 25 companies may be dissolved.  Upon dissolution and after settlement of all debts and liabilities, the funds and property of the society or company may not be distributed among the members.  Instead, the remaining funds and property must be given or transferred to some other society or section 25 company, preferably one with similar objects. 
D. Activities
Economic Activities 

There are no restrictions on Indian NPOs’ business/commercial/economic activities. However, the profits must be applied fully towards charitable objects. If this is not done, then the NPO will lose its income tax exemption and its income will be liable to tax at the maximum marginal rate (35.1%). Further the NPO must maintain separate books of account for the business/commercial/economic activities. [Income Tax Act, 1961 (seventh proviso to section 10(23C); section 11, subsection 4 and 4A)]. 

Investment Activities
State and national laws limit the types of investments Indian not-for-profit organizations may make.  For example, Indian not-for-profit organizations may not invest in shares of public or private limited companies.  Furthermore, not-for-profit organizations registered in India may not invest abroad.    

E. Political Activities 

Not-for-profit organizations in India may not engage in political campaign activities or legislative activities.  Indian not-for-profit entities may "lobby" for non-political causes, however, provided that such activity promotes the "general public utility" and is incidental to the attainment of the charity's objects. 

F. Discrimination
Article 30 of the Constitution of India gives all "minorities," whether based on religion or language, the right to establish and administer educational institutions of their choice.  "Minority" is defined as those groups that wish to preserve stable ethnic, religious or linguistic traditions or characteristics markedly different from those of the rest of the population.  Accordingly, special inquiry should be made when donors are considering providing grants to educational institutions. 
G. Control of Organization 
With regard to charities in general, trustees are expected to be independent. It is, however, ordinarily possible for another legal person to influence the selection of directors, officers, or trustees – for example, by making a donation contingent on the donor's right to appoint a member of the board. 
A for-profit company that creates a public charitable trust can exert more direct control. The for-profit company could, in the process of founding the public charitable trust, reserve the authority to appoint and remove trustees and to influence major policy decisions. This is typical of a form of public charitable trust known as a "corporate foundation," which is essentially controlled by its for-profit founder, or "settlor." 

In the case of a Section 25 company or a society, members always have the right to remove directors and thus to influence policy. These members can include for-profit entities. 
Therefore, it is possible that an Indian charity may be controlled, perhaps indirectly, by a for-profit entity (which will lead to additional IRS scrutiny) or by an American grantor charity (which requires that the charity specifically so provide in the affidavit). 

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