Archive for February, 2018

Infrastructure in 2018?

Wednesday, February 28th, 2018 by Allison Rosenstock

A new CNN generic poll shows Democrats leading in the congressional polls by 16 points. The party in power also historically loses ground during midterm elections. The majority party often has problems getting voters to turn out for the midterms because they get complacent. Given these factors, and the GOP’s struggle to pass legislation other than the tax bill, Democrats are looking good for November.

However, Democrats are defending 25 Senate seats while the GOP is defending eight.

Given the lack of action on the part of the GOP this year, it’s no surprise that, “Senate Majority Whip John Cornyn (R-Texas) thinks getting an infrastructure bill across the finish line this year will be tough,” according to Politico. Therefore, leading lobbyists are advising their clients to “start thinking about what a bipartisan infrastructure plan could look like if the Democrats take back the House in November.” Congress is unlikely to pass President Trump’s $1.5 trillion infrastructure plan this year “because [they] have so many other things to do and we don’t have much time” said Cornyn. However, Sen. Tom Carper disagrees with Sen. Cornyn. He believes that Congress must find a path forward on infrastructure this year. However, lobbyists are not discouraged. While they believe that there might not be an infrastructure bill this year, they are “not backing down” in their advocacy, said Julie Minerva, a partner at Capri and Clay. A Republican lobbyist described 2018 as, “the year to build momentum on infrastructure.”

Even though a large infrastructure bill might not pass this year, smaller initiatives might pass. “Infrastructure lobbyists are paying attention to the Water Resources Development Act, which authorizes water projects.” Other smaller infrastructure projects are still on the table, such as the Inland Waterways Trust Fund and the Harbor Maintenance Trust Fund.

The New Tax Bill – What Nonprofits Should Know Right Now

Thursday, February 22nd, 2018 by Allison Rosenstock

On December 22, 2017, H.R. 1 (also known as the Tax Cuts and Jobs Act) was signed into law. This new tax law provides sweeping changes that potentially impact all U.S. taxpayers, including associations and other exempt organizations. For the most part, these changes are effective for tax years beginning after December 31, 2017.

The full text of the bill is here. The following provisions are of particular interest to exempt organizations:

• Decrease in Maximum Tax Rate – The bill decreases the tax rate for corporations, and on unrelated business taxable income (UBTI) for exempt organizations, from a maximum of 35% to 21%. Note that this new 21% rate is a flat tax rate. This decreased tax rate also applies to the proxy tax on exempt organizations for lobbying and political expenditures incurred, and also for Form 1120-POL.

This change in the tax rate structure may affect your organization’s estimated tax calculations. Your overall tax liability may decrease, or it may increase, based on your organization’s pre-2018 incremental tax rate.

In addition, for financial statement purposes, organizations should consider this new rate in valuing its deferred tax assets and liabilities, for tax years beginning after December 31, 2017.

• Unrelated Business Income – The bill requires exempt organizations carrying on more than one unrelated trade or business to calculate UBTI separately for each trade or business. This practice effectively prohibits using losses relating to one trade or business to offset income from another trade or business.

• Non-Deductible Fringe Benefits – The bill increases UBTI by the amount of certain fringe benefits for which deductions are disallowed. These fringe benefits include qualified mass transit and parking benefits paid by the employer. However, the provision for amounts paid by an employee through elective salary deferral via a qualified transportation fringe plan appears to be unchanged and would not be subject to tax.

• Executive Compensation – The bill imposes a 21% excise tax on compensation over $1 million for executives of nonprofit organizations. The excise tax is imposed on the organization and not on the employee.

 Net Operating Losses – The bill eliminates carrybacks of net operating losses (NOL), and it allows unused NOLs to be carried forward indefinitely. The bill also limits the NOL deduction to 80% of a taxpayer’s taxable income. These changes to the application of NOLs are effective for losses arising in tax years beginning after December 31, 2017.

 Local Lobbying Expenses – The bill eliminates the deduction for lobbying expenses regarding legislation before local government bodies, including Indian tribal governments. As a result, these expenses will be included in the calculation of non-deductible membership dues or proxy tax liability.

• Provisions Not Included – Certain provisions affecting nonprofits from earlier drafts of the tax bill have not been signed into law at this time. These provisions include the repeal of the Johnson Amendment, prohibiting Section 501(c)(3) organizations from engaging in political activity; the inclusion of name and logo royalties in UBTI; and changes to the methods for determining reasonable compensation for the purposes of the intermediate sanctions excise tax.

Many of these provisions require additional clarification and guidance, and still, others may require technical correction. We will provide additional information in the coming weeks regarding how the new tax bill could affect your organization. Please consult any member of the Tate & Tryon tax team if you have questions regarding this matter.

The Seven Deadly Sins of Lobby Days

Thursday, February 15th, 2018 by Allison Rosenstock

If you’re planning an advocacy day in spring 2018, you’re not alone. From February through early May, an estimated ten and fifteen thousand advocates come to DC per week to meet with their legislators and staff. Yes, that’s per week. How can you rise above the crowd and get the meetings you need? Avoiding the following “sins” is an important first step!

Sin #1 – Non-Constituency

You’ll waste a lot of time if you don’t focus on constituency-based meetings. Legislators and staff rarely meet with anyone outside their district, particularly when they receive dozens of requests per day. If you’re scheduling for a group of advocates, each of whom have multiple locations in multiple districts (for example, businesses with headquarters in multiple locations), be sure to collect those addresses as well.

Sin #2 – Non-Written Requests

You’ll generally be asked to submit your initial request via e-mail, web form or—in the case of one office that shall not be named—fax.  It could even be carrier pigeon. To find out the best method, check the contact tab on the Congressperson’s website (accessible through and  Whatever you do, use that method.

Sin #3 – Assumption

Never assume that your request actually got to the office or that the scheduler will just magically get back to you. With hundreds of requests to go through a day, things get lost. Often.  When you call to follow-up, be sure to say “I’m calling regarding a scheduling request I already sent in.”  That way you can avoid the discussion about how to send in a request.  Also, be sure to take notes about when they’ll be able to look at the request.  It’s a waste of your time and theirs to call them every week if they’ve told you they won’t be able to consider the request until the week before the event (which is common).

Sin #4 – Member-itis

Recognizing advocates can be a little prickly about meeting with staff, never, ever insist on meeting only with the member, unless you’re willing to give up the meeting altogether. Getting legislator meetings 20 to 25% of the time is an outstanding percentage for any group. If you’re offered a meeting with a staff person, go ahead and set it up, and see Sin #6 for tips on helping your advocates not be disappointed with the outcome.

Sin #5 – Inflexibility

This is particularly a problem when it’s combined with high expectations. Too many groups offer a very small meeting window and then are irritated when staff or members are not available in the 12:00pm to 2:00pm time slot they’ve designated for meetings. Try to have an entire day available – and ask your advocates to bring a good book.

Sin #6 – Training Only on Policy, not Process

Yes, it’s important that advocates understand the asks.  You want to be sure they can walk into an office to state with some confidence that they are asking for $6 billion for such-and-such program or for the legislator to cosponsor such-and-such bill.  But remember that advocates are intimidated by this information.  They become concerned that if they forget the bill number or the appropriation amount they will look stupid and ruin the entire experience for the whole organization.  Unfortunately, many groups leave out some of the most important knowledge – how to have an effective meeting.  Your tips in this area should include details on how to deliver a message, making the constituency connection, telling a personal story and, of course, the value of meeting with staff.  And teaching them to say “I don’t know, but I’ll get back to you,” is helpful as well.

Sin #7 – Abandonment

Once your lobby day is over, your advocacy for the year isn’t finished. In fact, it’s just started. Be sure you’ve provided your advocates with specific ideas on how to work with the office on an ongoing basis.  This might include training them on how to attend a townhall meeting, conduct a district visit or connect via social media.


The New Tax Bill and its Implications: An Interview with Guy Sheetz

Wednesday, February 7th, 2018 by Allison Rosenstock

Guy Sheetz is the Chief Financial and Administrative Officer for the Futures Industry Association. He has many accomplishments, including helping in the association’s merger with Futures’ associations in Europe and Asia and refocusing the organization from a national body to a powerful global voice. Additionally, his work with the FIA Technology Services, a for-profit subsidiary, has saved the industry an estimated $200 million over the past seven years.

Having first worked in the for-profit world, he joined FIA eight years ago. Since that time, he has seen greater pressure put on finance professionals to make their nonprofits more transparent. Especially since data has become easier for the public to access. Sheetz recently discussed what nonprofit finance professionals face today.

“Managing a nonprofit, we have to have good controls, to ensure they are transparent,” Sheetz said. He cited the recently passed Tax Cuts and Jobs Act as a new concern for nonprofits. With this legislation comes uncertainty because it will be such a major change, though more so for donor-based organizations than (c)6 groups, such as FIA. Many analysts predict overall deductions to charitable nonprofits will be lower because of changes included in the law.

For donor-based organizations, Sheetz says, “(the answer) is transparency in how you’re benefiting your donors. The first thing to do is to make sure your in-house operations are as good as possible.” Still, with the new law affecting executive compensation and UBIT, Sheetz maintains, “this will be more complicated to arrange and measure internally,” with the need to have “more discussions with boards.”

According to an article by GKG Law published by Association TRENDS, the Tax Act potentially increases association taxes by creating a new code that imposes an excise tax on executive compensation. While this will increase the taxes of certain associations, the final version of the Tax Act eliminates the provision that would have extended penalties to organization’s exempt under sections 501(c)(5) and 501(c)(6).

As for UBIT, the Tax Act includes several changes that will increase the amount of association income that may be subject to tax as unrelated business income. However, the effect of the increase in the amount of taxable income may be partially offset by the Tax Act’s reduction in the corporate tax rate.

In this time of change, Sheetz’s relayed his advice to up-and-coming nonprofit financial professionals. First and foremost, keep your principles. “Having a good process, internal control, leadership team and board engaged with, always gets you ahead of the game.” Additionally, the beginning of the year is often a time for executive transition at the highest level. Sheetz advises incoming association CEOs, “take the time to understand the core metrics, finance status of where you are and spend time getting into the numbers. Make sure you outline what your expectations are for short-, medium- and long-term growth or development patterns within the organization, and work with the CFO to meet those objectives.”


The Lobbying Community’s Response to the State of the Union

Thursday, February 1st, 2018 by Allison Rosenstock

According to Politico, many on K Street were disappointed that, “the speech did not expand much on the President’s 2017 joint address to Congress,” especially involving infrastructure. Stephen Martinko, Government Affairs Counselor at K&L Gates said, “the president set high expectations but was light on details…while the State of the Union was a strong signal that after more than a year of waiting, it’s now time for real work to begin on infrastructure.” On Tuesday night, Trump called for $1.5 trillion in funding for infrastructure, but the “trillion-dollar question” is how those projects will be funded. Lobbyists and Congress alike are especially concerned, given that, at first, President Trump previously called for a $1 trillion plan.

Some lobbyists are optimistic, such as Mike Ference, a partner at S-3 Public Affairs, who said that, “Trump recognized that ‘the path forward on legislation this year must be bipartisan [by] outlining his framework for an infrastructure package.’” However, others realize that one of the hurdles will be whether “the White House will be able to compromise and work with Democrats to get the votes they need to enact the legislation,” Lisa Kountoupes, President of Kountoupes Denham Carr & Reid said.

Some question that an infrastructure plan will happen at all. Squire Patton Boggs wrote a memo to its clients that said, “the political imperative that enabled the GOP to unify around tax reform last fall has given way to a familiar intraparty debate about what the party’s next priority should be…meanwhile, Congress continues to struggle…” on a multitude of issues.

Organizations who were particularly happy with the State of the Union included Apple, Toyota, Mazda, Chrysler and Staub Manufacturing Solutions, who all received recognition from the President. The National Association of Manufacturers quickly noted that Staub Manufacturing Solutions is a member. Mazda, on the other hand, believes they “didn’t do anything special” to get mentioned in the speech.