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Greening Form 990

Good governance policies became the rage in the wake of the Enron scandal and other instances of corruption, including several in the non-profit sector. Now the new thing is to "go green," as well we should, considering we have only one planet to live on.

But as the song says, "It's Not Easy Being Green," so not every institution is completely on board with it, even among traditional do-gooder charities. I have a solution. If the IRS wants a quick fix for getting non-profits to "green" their operations, it should do for the environment what it did for non-profit governance--just add a few questions to Form 990.

As I noted last month ("Passive-Aggressive Regulation," March 2009), even though it had no statutory authority to impose new obligations, the IRS added several new questions for every charity to answer about governance issues. Since no tax lawyer in her right mind wants to answer "no" to any of the questions, the new form effectively prods the entire sector to create policies on issues including conflicts of interest, whistleblower protections and document retention. And they're doing it, even though the form itself says, "[This section requests] information about policies not required by the Internal Revenue Service" [emphasis added].

That's a pretty clever way for government to compel behavior without the hassle of making a new regulation. So the IRS should try it again to save the planet. To that end, I propose several new questions for the next version of Form 990:

1 Do the officers, directors, trustees or key employees of the organization drive hybrid vehicles?

1a If "No," use Schedule W to describe the rationalizations used by each to continue driving his or her gas-guzzler.

2 Does the organization have a full-time professional employee with the title of "green czar"?

2a If "Yes," use Schedule W to describe the background, training and personality quirks of this employee who was willing to accept a job title derived from a failed Russian ruling class.

2b If "No," feel relieved.

3 Do any of the organization's employees pretend to turn their computers off at the end of the workday by turning off only the monitor and taping over any visible blinking lights on the CPU?

3a If "Yes," use Schedule W to describe (i) how you know and (ii) what you're going to do about it.

3b If "No," use Schedule W to explain (i) why you believe them or, alternatively, (ii) why you don't have any computers.

4 Does the organization have an established recycling program for its office and other operations?

4a If "Yes," use Schedule W to list the items recycled and how you prevent employees from putting glass bottles in the aluminum can bin and aluminum cans in the glass bottle bin.

4b If "No," explain why you don't feel bad about that, using Schedule W.

5 Do any of the officers, directors, trustees or key employees of the organization think global warming (or climate change) is hooey?

13 If the organization's answers to the questions in this section trigger an audit, on what basis will you challenge the authority of the IRS to ask them? Use Schedule W for your answer, being sure to include applicable citations to the Tax Code, the Administrative Procedure Act and other authorities you think relevant.

I am confident that merely asking these questions will immediately change the behavior of the tax-exempt charities. The entire sector will probably rise up as one to file strong objections and even lawsuits, using recycled paper of course.

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Bruce D. Collins

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