The Tax Law of Colleges and Universities / Edition 2

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The Tax Law of Colleges and Universities, Second Edition is the primary tax guide for higher educations institutions. It provides comprehensive coverage of the most important issues facing colleges and universities including employment taxes, fringe benefits (including 403(b) retirement plans and deferred compensation), lobbying and other political activities, subsidiaries and spin-offs (graduate schools, research institutes, and fundraising foundations), plus strategies for handling an IRS audit.

Also contains the most current information on new intermediate sanctions regulations, tax treatment of immigration-related expenses paid by a college or university on behalf of its employees and other individuals, and Capital gains exclusion to unrelated business income.

This title is supplemented annually to keep you fully abreast of all of the latest tax law changes that affect colleges and universities.

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Product Details

  • ISBN-13: 9780471443292
  • Publisher: Wiley, John & Sons, Incorporated
  • Publication date: 9/21/2001
  • Series: Wiley Nonprofit Law, Finance and Management Series, #181
  • Edition description: REV
  • Edition number: 2
  • Pages: 384
  • Product dimensions: 6.96 (w) x 10.40 (h) x 1.15 (d)

Meet the Author

Bertrand M. Harding, Jr., operated his own law firm in Washington, D.C., where he specializes in nonprofit tax law with emphasis on tax issues and problems facing colleges, universities, and international educational organizations. A substantial component of his practice also involves representation of colleges, universities, and other nonprofit organizations in controversies with the Internal revenue Service, including in audits, in all levels of administrative appeal, and in court. He speaks frequently to groups involved in college and university tax issues and sponsors a website, the College & University Tax Page (, which contains analyses of current issues and other topical information relating to college and university tax matters.

Mr. Harding's interest and involvement in nonprofit tax law began in the early 1970's when he worked for the IRS Exempt Organizations Division while attending the George Washington National Law center in the evenings. After graduation from law school in 1975, Mr. Harding served for two years as an attorney-advisor to the Honorable Judge Bruce M. Forrester, United States tax Court. In 1977, he joined the Washington office of the international law firm of Baker & McKenzie, where he was elected a tax partner in 1984. While at baker & McKenzie, Mr. Harding represented a number of clients in tax controversy matters and, in addition, developed a nonprofit tax practice drawing on the knowledge and experience that he had gained while working at the Internal revenue Service. In 1996, he left baker & McKenzie to establish his own law firm specializing in nonprofit tax matters an representation of clients in tax controversies with the Internal revenuer Service.

Mr. Harding received his B.A. from Duke University in 1968, and he is a member of the Exempt Organizations Committee of the American Bar Association.

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Read an Excerpt


This second edition of the book is being released approximately four years after the first edition. During this period of time, there have been a number of significant developments in the college and university tax area, resulting in the addition of substantial new material to this second edition as well as the deletion of a fair amount of superseded and outdated text from the first.

The college and university tax area continues to evolve rapidly and, in some areas, quite dramatically. It is worth remembering that up until the early 1990s the IRS took almost no notice of colleges and universities, and not coincidentally, most schools had little knowledge of or interest in tax issues. During this time period, it was quite common for a school with hundreds of millions of dollars (or even a few billion) in gross receipts to have no employees with any federal tax expertise, and virtually no schools had a "tax manager" position. Over the past 10 years or so, that has changed quite dramatically, in large part because of the comprehensive audit program directed at colleges and universities instituted by the IRS in the early 1990s. Now, virtually all colleges and universities have at least one employee who is responsible for federal tax issues; many schools have a tax manager who has his or her own tax department; most college and university financial and legal conferences have at least one session devoted to tax issues; and there are at least two large groups of colleges and universities that get together for a few days each year to discuss tax issues.

The issues that arose in the early to mid-1990s were fairly basic (for example, will royalties paid by a university to employee-inventors be treated as a true royalty or as additional employee wages?); however, resolution of the basic issue often led to more subtle and difficult issues (what will be the impact if the royalty is paid to the employee-inventor in stock of the licensed company instead of in cash?). As has been the case in other areas of the tax law, as these more complex issues are resolved, they, in turn, raise more complex issues still (if the royalty can be paid in the form of stock, when is the employee-inventor treated as in receipt of the stock for tax purposes and how is the stock to be valued?). Unfortunately for colleges and universities, and fortunately for the IRS, this peeling away of the onion skin of issues is a never-ending process, and colleges and universities have now entered the tax world that the for-profit corporations have lived in for decades.

I have retained the same overall approach to the second edition that I followed in the first--I have attempted to cover all of the different tax issues that a college and university might face, but at the same time I realized that some of these topics (403(b) plans and tax-exempt bonds, to name the most obvious examples) each deserved a book of their own. Therefore, I have covered these areas in fairly cursory form and have tried to direct readers to sources where they may be able to find a more in-depth treatment of the topic. One of the most significant changes in the second edition is a more comprehensive treatment of nonresident alien withholding and reporting issues. I thought it important to give this area broader treatment because it continues to be so confusing, and more importantly, because nonresident alien tax issues are a prime focus of the IRS in its audits of colleges and universities.

Chapter One provides a historical overview of how the IRS has dealt with colleges and universities over the years and discusses some of the reasons why the IRS decided in the early 1990s to focus its compliance efforts on institutions of higher education. This chapter also provides some recommendations as to resource material that a college or university tax administrator might obtain to assist in identifying and resolving tax issues as they arise and, in addition, to stay current on new developments. And it contains a discussion of the various legal authorities, such as revenue rulings, court cases, etc.

Chapter Two contains a general treatment of the unrelated business income tax rules, including the definition of "unrelated business income," the specific statutory exceptions to the application of this tax, and other related topics, such as income from controlled organizations, foreign insurance income, debt-financed income, and deductions that can be claimed in computing unrelated business income.

Chapter Three identifies and discusses those peculiar college and university activities that raise potential unrelated business income tax concerns. These include some of the obvious activities, such as bookstores, affinity credit cards, travel tours, and corporate sponsorships, as well as some that are less obvious, such as parking lots, summer sports camps, and catering activities.

Chapter Four looks at the employment tax obligations imposed on a college or university in its capacity as an employer and as an entity that retains independent consulting services. This chapter devotes considerable attention to the problem of classifying workers as employees or independent contractors, and also discusses whether student and nonresident alien employees are subject to the FICA tax.

Chapter Five focuses on fringe benefits. After a general discussion of the basic fringe benefit rules, this chapter looks at the treatment of those particular fringe benefits typically provided by colleges and universities to their employees, such as cafeterias and dining rooms, athletic facilities, free or discounted athletic tickets, free or subsidized housing, and section 127 educational assistance programs.

Chapter Six deals with the rules regarding charitable contributions and includes a general discussion of these rules together with an analysis of those provisions of special interest to colleges and universities, such as the distinction between making a gift and paying an individual's tuition, and payments made for the right to purchase seating at athletic events.

Chapter Seven deals with the taxation of scholarships and fellowships, both from the standpoint of the student-recipients (whether and to what extent the grant is taxable to the student) and from the institution's standpoint (that is, the school's tax withholding and reporting obligations on making scholarship and fellowship payments). This chapter also contains a discussion of two major issues currently being raised in IRS audits--distinguishing between compensation and a scholarship/fellowship, and the withholding and reporting requirements imposed on an institution making scholarship/fellowship payments to nonresident aliens.

Chapter Eight includes an expanded discussion and analysis of nonresident alien tax issues, such as what constitutes taxable income to the nonresident alien, how tax is to be withheld and reported, and the impact of tax treaties.

Chapter Nine contains a discussion of a number of different issues, many of which would require an entire book to treat comprehensively. The chapter covers the rules relating to (1) maintaining tax-exempt status and avoiding problems involving potential private inurement and the intermediate sanctions rules, (2) organizing and operating related entities, (3) 403(b) and other retirement plans typically adopted by colleges and universities, (4) tax-exempt bonds, and (5) filing the Form 990. Many educational institutions have begun to expand their activities overseas, and this chapter also contains a discussion of the legal issues and potential pitfalls that can arise in conducting activities abroad.

Finally, Chapter Ten covers IRS audits. It describes how most audits of colleges and universities are conducted and offers some tips on how to handle the audit, including a discussion of the attorney-client privilege and how to ensure that the privilege is maintained. The chapter also discusses how a tax case moves beyond the audit stage to the IRS Appeals Office and on to court.

It is important to note that at the end of many chapters there is a discussion of how the particular topic is treated in the IRS College and University Examination Guidelines.

In the Preface to the first edition, I expressed my frustration with not having the time to be able to provide a more in-depth analysis of the different topics and issues discussed, and to some extent, that frustration carries over to the second edition, although there are a number of areas where I have included a deeper analysis of the issue in question. It is, however, simply not possible within the constraints of conducting my private practice to write essays on each different issue. There is another limiting factor that stems from the fact that much of my practice involves representing clients before the Internal Revenue Service. In discussing and analyzing the pros and cons of various issues, I have to be careful that I do not assert an opinion that may be contrary to one that I previously asserted on behalf of a client, or one that I may want to assert in the future. This is a problem that is not faced by, say, a law professor or other academic, and readers should be aware of this limitation since it applies to virtually all private practitioner authors.

Finally, I would like to express special thanks to people who have been of assistance over the four years since the first edition was published. These include my secretary, Jo Ann Mead, who has labored through all of the annual updates and this new edition with her usual good humor and skill; the many individuals in the college and university business and general counsel offices with whom I work on a daily basis and who are kind enough to contact me for advice when, in many instances, they know as much as I do about the issue; and my wife, Linda, who continues to be my biggest cheerleader and my best friend.

Bertrand M. Harding, Jr.
April 2001
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Table of Contents


Chapter Two: Unrelated Business Income.

2.1 Introduction?General Principles of the UnrelatedBusiness Income Tax.

2.2 Statutory Exceptions to Unrelated Business Income.

2.3 Income from Controlled Organizations.

2.5 Unrelated Debt-Financed Income.

Chapter Three: Common Activities Conducted by Colleges andUniversities That Raise Unrelated Business Income Tax Concerns.

3.3 Advertising Income.

3.4 Corporate Sponsorship Payments.

3.6 Travel Tours.

3.7 Operation of Parking Lots.

3.8 Participation in Partnerships.

3.10 Use of Recreational Facilities by General Public.

3.13 Affinity Credit Cards.

3.14 Sale, Rental, or Exchange of Mailing Lists.

3.22 Internet Fundraising and Advertising Issues.

Chapter Four: Employment Taxes.

4.2 Employee versus Independent Contractor Classification.

4.3 Social Security Tax Exemption for Students.

4.6 Classification of Termination, Early Retirement, Royalty,and Settlement Payments.

4.6A Student Loans Forgiven in Return for Subsequent Services (New) 20Chapter Five Fringe Benefits.

5.2 The Section 132 Rules.

5.4 Fringe Benefits Typically Provided by Colleges and Universities.

Chapter Six: Charitable Contribution Deductions.

6.10 Charitable Split-Dollar Life Insurance.

Chapter Seven: Scholarships and Fellowships.

7.2 The Section 117 Rules.

7.4 Qualified Tuition Reductions.

7.5 Section 117(c)?Distinguishing BetweenScholarship/Fellowship Grants and Compensation.

7.6A Tax-Free Discharges of Student Loans (New).

Chapter Eight: Income Tax Withholding and Reporting onPayments to Resident Aliens.

8.8 Income Tax Treaties.

8.12 Tax Treatment of Immigration-Related Expenses Paid byColleges and Universities (New).

Chapter Nine: Special Issues and Problems.

9.1 Exemption Issues.

9.2 Related Entities.

9.3 Section 403(b) and Other Retirement Plans.

9.4 Tax-Exempt Bonds.

9.5 Conducting Activities Overseas.

9.6 Form 990 Filing Issues.

9.7 State Colleges and Universities.

9.8 Education Tax Incentives.

Chapter Ten: IRS Audits of Colleges and Universities.

10.12 The Attorney?Client and Work Product Privileges.

Table of IRS Revenue Rulings.

Table of IRS Revenue Proceedings.

Table of IRS General Counsel Memoranda.

Table of IRS Private Letter Rulings.

Table of IRS Technical Advice Memoranda.

Table of Cases.


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