The new 501(c)(3) and the future of free software in the US
blogs.gnome.org
blogs.gnome.org
I was talking to a tax lawyer the other day, though. I told her that I heard a lot of public-interest journalism projects were getting rejected for tax-exempt status, and it seemed like a problem in the tax laws -- we haven't adjusted to a world where a lot of journalism is done by non-profits. A lot like this story, but with journalism instead of software development.
She said she had looked at some of those applications, and she would have rejected them too. She thought the problem was journalism startups haven't figured out that they need to talk to a tax lawyer before filing important documents with the IRS. (And, yes, she's donating time to help with that, incidentally.)
Like I said, I'm not a tax lawyer. But I would wait to get a perspective from someone who knows this field before I concluded that the IRS is really opposed to free software in general. And I would do this kind of thing through a lawyer who specializes in it. Remember that you're helping out more than just you -- if you do it right you're paving the way for people like you. If you do it wrong, you're inviting bad decisions with broad statements like the ones quoting in this article.
One one hand, this seems crazy if the software created is given -- for a bad metaphor: imagine a charity being unable to feed people because those people may use the energy they get from that food to do non-charitable works.
Separately, and to play devil's advocate, I can kind of see the logic here: it creates a loophole through which re-usable work that is funded under tax exempt status can then be used by anyone, so you could imagine some org donating some money to get some particular work done, then getting it and using it without having to have paid tax on the equivalent work that would have been done if they paid for it. Going back to the food metaphor, it might be like a charity offering free food to anyone, rather than just to those who have a particular need. I think that such a charity might run into a similar rejection, but I don't know.
Like I said, I think it sounds crazy, but hopefully this draws more interested parties into the discussion.
How should all organizations which happen to open-source code automatically be "for profit" just because some other companies might use such code for commercial purposes? The two examples are very similar but the NFL is non-profit. If the precedent is set, the damage to the FLOSS movement would be real and lasting.
Section 501(c)(6) of the Internal Revenue Code provides for the exemption of business leagues, chambers of commerce, real estate boards, boards of trade and professional football leagues, which are not organized for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual.
http://sportsfans.org/2012/03/why-is-the-national-football-l...
One more needle to add to the haystack of bull shit from my government I put up with.
The NFL is a 501(c)(6) trade association, so that's expected. Its not a 501(c)(3) charity.
The rules are completely different.
http://www.irs.gov/pub/irs-tege/eotopick03.pdf
"IRC 501(c)(6) provides for exemption of business leagues, chambers of commerce, real estate boards, boards of trade, and professional football leagues (whether or not administering a pension fund for football players), which are not organized for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual."
Of specific interest is the "Statutory History" section on page four - a history of private organizations asking for exemptions.
They aren't. See, inter alia, the Apache Software Foundation. "BOLO" doesn't mean "blanket prohibition".
If they donate the result to be used by everyone, not only this org - what's wrong with that? If a company builds a public park and this company's employees, along with others, can visit it - is it bad? If a company builds a hospital which accepts, among others, this company's employees - is it evil?
Giving to the public isn't the point of nonprofit status, there are lots of different kinds of nonprofits, and the one under discussion here is a very specific kind, and in order to qualify for it, the IRS requires a lot of specific things.
From what I understand, the issue the IRS has is the fact that the recipient of the charity was too broad, and to qualify for 501(c)(3) status, the recipient of the charity should be more targeted.
Think of it this way, I could give away free food all day, but if I'm doing it at the top of a ski resort, it probably doesn't help the kind of people who need free food and my case for being considered a charity may be diminished.
There is nothing to say that companies doing open source can't qualify, many have, and they obviously did so with better lawyers and maybe a more concrete/directed plan as to who would receive the charity they are offering.
The IRS isn't concerned with the benefit to society, that's not what they are regulating, they are regulating the flow of money and exemptions to taxation. Software that is tax free and used by entities which may exploit that are what the IRS is probably considering.
Similarly, the software built by the company-funded tax-exempt ‘charity’ could be constructed in such a way that essentially only the funding company can make use of it.
That’s not to say that accepting others in a hospital on an oil rig is ‘evil‘, it might just not be tax-exempt (assuming that an employees-only hospital wouldn’t be tax-exempt).
The reason I ask is that the term "open source" was designed to be more palatable to businesses. In Revolution OS, Eric S. Raymond said in regard to saying open source over free software: "If you walk in to an executive's office and say 'Free Software', OK, If you're lucky, the response you'll get is something like, 'hmm, hmm, Free Software, must be cheap, shoddy, worthless.' If you're not lucky, it has associations with the Free Software Foundation's wholesale attack on intellectual property rights, which regardless of what you think about the ethics of that, it's lousy marketing, it's not something that businesses want to hear" [2].
I don't know how savvy the IRS was about the nuances between open source and free software (probably not very), but if they were, they might be making a somewhat-reasonable distinction that "open source" was designed specifically to please the business sector rather than free software's focus on ethics and freedom.
[1]: http://democrats.waysandmeans.house.gov/press-release/new-ir... [2]: http://www.cswap.com/2001/Revolution_OS/cap/en/25fps/a/00_54
I am not saying I like one license type more than the other (I use both GPL and Apache, depending on the project).
These two are synonyms:
http://jordi.inversethought.com/blog/5-things-we-have-forgot...
More importantly, that difference is actually a big reflection of the underlying philosophy between the two terms. Free software is about maintaining the Four Freedoms (making tivoization a damaging loophole in the GPL), while open source is about arguing that the bazaar model is superior technically in order to sell it to business (and therefore tivoization is actually a plus to them). I believe this difference in intent should be noteworthy to the IRS in terms of evaluating whether a company is creating a nonprofit for tax-free software development as a form of corporate welfare.
> You have a substantial nonexempt purpose because you develop software published under open source compatible licenses that authorize use by any person for any purpose, including nonexempt purposes such as commercial, recreational, or personal purposes, including campaign intervention and lobbying.
By this logic, all non-profit educational entities should be disqualified because things people learn through their programs might later be used by those people to make a profit.
> public works must serve a community. Open source licensing ensures the Tools are accessible to the world. We have not found any authority for the proposition that the world is a community within the meaning of § 501(c)(3).
I understand that there are probably real legal reasons for the IRS saying this... but that's bordering on inanity worthy of the Onion.
If you haven't received your final rejection, you can appeal.
Don't try and do this yourself. The post says they spoke with folks at the Software Freedom Center, which is great, but I highly recommend finding a specialized attorney who's seen lots of applications and knows the right angle. Hire an attorney who specializes in obtaining 501(c)3 status. We made this mistake early on, thinking we could work through the NOLO book and apply ourselves. It cost us. For around $1k you can find a good non-profit attorney to help.
We got flack for the open-source thing, too. Our original exemption application was basically "Hey, we're a charity! We give things away for free and release open source code, which can be used by everyone!" Depending on the IRS agent assigned to you, you might get flack for this as well. Generally speaking, they may not like that a for-profit business can use your organization's by-product to make lots of money for themselves. We spent some time explaining how OSS worked to the agent, and was able to convince him that because (most) of our OSS is copyleft, that it would be a continually-free-and-open good, not a private benefit.
Nevertheless, just releasing OSS is NOT an exempt purpose. If you read the IRS regulations, they are very specific as to what a core exempt purpose is. You'll need to pick one that fits best. Generally speaking, it's 1) Church stuff 2) Scientific advancement and research 3) Furthering of the arts 4) Education 5) "Charity," meaning helping people who are disadvantaged in some way 6) Some others that I'm not remembering.
Most OSS 501(c)3 don't get exemption by just releasing open source software-- they get exemption by being an educational institution. So you may want to go that route -- the organization's core exemption is the creation of educational materials that help education members of a particular community in XYZ ways. This is what we ended up doing -- we're classified as an educationally-exempt organization. If you look up the 501(c)3 apps of some other OSS non-profits you'll see similarly -- e.g. Plone Foundation is set up as an educational organization.
Edit: If you'd like to take a look at some of our back-and-forth with the IRS agent at the time, check out the page here: http://localwiki.net/org/Historic_501%28c%293_application_pr... You'll see his response was similar to yours, but we decided to pursue educational exemption and were granted on that basis in the end. Also, you can call up the IRS Agent assigned to you and talk to them about the application, which can be extremely helpful.
I would argue that the OSS company is still at a disadvantage since they have to figure out how to feed the developers (pay them a decent wage) while still giving the software away for free.
Following that logic, if I rob 4 of my 5 neighbors, I have subsidized the 1.
IOW, there is no advantage to being a non-profit unless your business is a charitable activity.
>> There’s a charitable organization here in San Francisco that plants trees throughout the city for the benefit of all. If one of their tree’s shade falls on a cafe table and cools the cafe’s patrons as they enjoy their espressos, does that mean the tree-planting organization is no longer a charity?
In fact, the tree-planting group can easily show that they serve an exempt purpose, namely "lessening the burdens of government". Planting trees is something that city governments routinely do for the purposes of beautification or whatever. If a non-profit wants to do it, that's a perfectly legitimate reason to get tax exempt status. The group would also have to show that they are serving a public interest - for instance they're not just planting trees outside of one company's coffee shops but they're providing a service for the whole neighborhood.
IANAtaxL, in fact IANAL of any kind, but my reading is that the IRS doesn't want companies to set-up fig-leaf charities that absorb and hide their normal business functions.
If Apple or Google spun off a 503(c)(3) for Swift or Android how would that be a bad thing? It would ensure that the work of those developers stays open source and free to all. Even if it only applies to a particular platform it would still be open source and very useful for the world--if only to be able to see the code.
What the IRS needs is a few finer points of distinction... Let the FOSS development be tax-free as long as it's GPL or similarly licensed (the code must stay open no matter what) but deny such status for code that is BSD-like which may (easily) be used in a tax-circumvention mechanism; where some core code could be open source but to actually make it work you need the proprietary derivatives.
Presumably you mean a 501(c)(3) -- a not merely tax-exempt organization but one to which donations are tax-deductible as charitable donations; the problem here with one sponsored by a for-profit company, whether its developing open source software or not, is that they run the risk of being directed at the for-profit company's priorities, and being a way for money to be, in effect, funneled into the companies business in a tax-deductible manner from those with a stake in the company's returns.
> What the IRS needs is a few finer points of distinction... Let the FOSS development be tax-free as long as it's GPL or similarly licensed (the code must stay open no matter what) but deny such status for code that is BSD-like which may (easily) be used in a tax-circumvention mechanism
The copyleft vs. noncopyleft distinction really has no bearing on the central problem here. The real problem is that, to the extent that there is legitimate reason to more closely look at 501(c)(3) applications from entities focussed on OSS (perhaps because for-profit entities have been trying to set them up as ways to improve the tax status of development efforts when they have an OSS-centric business model), this particular case doesn't seem to be one that should have been problematic -- not because of license terms, but because the potential problems that such scrutiny is designed to avoid aren't present. But that may just be a poor first-level decision or a result of poor application crafting, and not any real indication of any problem with the general policy.
Nolo's book isn't really meant for OSS/software/online projects, so it only really provides a rough outline of the process. Because of that, we got to the point where we did have to consult an attorney to get us back on track.
If you're working with an OSS community, it's important to note that giving stuff away != a charity. You need to emphasize that you are working specifically for the underprivileged. Even if you have an underprivileged community that you are serving, if you serve all comers it could easily seem as if it was self-serving to donors.
The educational exemption is generally much more appropriate for information and technology, like philipn said. When we took the time to explain that our goal was to teach people about their own communities, they were much more receptive. Other orgs like The Perl Foundation were similarly organized as educational (providing training at conferences, educational grants). Likewise with Wikimedia Foundation, which is fairly obviously educational despite major software investments.
If what you want to do is just be tax-exempt -- but not have tax deductible donations -- that's a much easier thing to do. A 501(c)6 may serve any community, so long as it gets most of its funding from donations or membership dues. That's how the Linux Foundation handles it. It's less desirable, but it will prevent you having to pay tons of back taxes.
If all OSS was 501c3 material, it would be easy to abuse for private R&D purposes.
I could see that if you funded a non profit via income like Kickstarter, that would allow you to use that money over multiple financial years without paying taxes on it in the mean time.
But that doesn't really seem egregious if the technology is to be open sourced.
If your non profit suddenly makes $10 million, you couldn't just pay yourself that money, could you? Surely you have to be able to justify that your spending was aligned with the stated goals of the non profit, if and when audited?
Forgive my ignorance, I'm from New Zealand, and the laws are quite different over here. For instance, corporate income tax is franked, so you aren't double taxed on profits. That alone removes a lot of incentive to eliminate the tax a company pays.
Sure, there's protections that apply after the fact of abuse, but the whole purpose of having a 501(c)(3) application and review is to try to filter inappropriate entities out before the fact.
Here's how: (1) Company sponsors and in-effect (though not in name) controls nonprofit doing open source development. (2) Company provides "discounts" on its services (e.g., support or other services tied to, or closed source software license for software that depends on, but is not -- if the OSS is copyleft -- strictly derivative of the OSS developed by the non-profit) to people who donate to the non-profit. Company has now effectively restructured itself in a way that its R&D costs, or some substantial portion of them, are not merely tax deductible for it (as they would be as business expenses in any case) but also funded by tax-deductible payments from customers (which payments may not have been tax deductible expenses otherwise, particularly if the software isn't exclusively for the B2B market.)
Its not the "open source" that is the problem, its the relationship with the sponsoring company -- but I can certainly see why "open source" development is a cover for a "charity" that could be ripe for abuse, and why the IRS might want to carefully scrutinize charities of that type.
1) Get expert counsel. It can make the difference in the ultimate determination, and also in the number of years (!) it takes to get approved. We were lucky in that we granted our determination without question-- and it still took nearly two years to get.
2) Don't focus on the software, focus on your mission. It's not just a ruse-- it really makes sense. Become knowledgeable about the nuances of the exemption, and why it is granted when it is.
3) Proactively call your agent, once one is assigned. Not only can it dramatically shorten the time to determination, but it can also often head off questions that, once asked, require formal replies and often lead to further clarifications, which all take time.
However, the OpenStack Foundation recently applied for 501(c)(6) status and received an initial denial[1], much to the surprise of all concerned since this was historically pretty easy to get. So there may be something to the author's thesis.
[1] http://blogs.gnome.org/markmc/2014/05/17/may-11-openstack-fo...
To give some more background, my nonprofit went through a similar 4 yearlong back and forth process, but in the end, we did successful receive status last year. Prior to approval, I set up our organization as a fiscally sponsored organization by established another 501(c)(3). The status that we achieved is probably one of the highest on the IRS watchlist (donor advised fund) so I’ve had to fortune of getting to know the IRS and the tax code for tax-exempt entities very well :-)
For Yorba situation, the language used by Yorba in response to the IRS may be fine when talking to developers, but when talking to the IRS, using IRS’ language helps tremendously along with reinforcing a specific charitable purpose and avoiding any red flags (which Yorba’s response triggered in multiple regards); this is where a lawyer specializing in nonprofit law can really help as @philipn suggested. If you can’t afford a lawyer, you may be able to obtain pro bono work, and even then, it’s still good to read the relevant legal treatise to ensure you are well informed.
Then if you want to exempt donations, as in this case, you have to be of general interest (for the common good).
You don't need to apply, You can just self-check against a list of criterias, and emit a fiscal receipt for you donators (but you might have to prove it later). Or you can ask the tax administration to confirm and declare that you are of general interest.
And then there is another step for more exemptions, for your donators "of public utility" ("d'intérêt public"). This is way harder to get and is granted and published by the government. This is for bigger fondations working on great, wide issues.
GPL v3
IANAL, but can you modify the license so if the user of your code is a for profit institution, then they are licensed under GPL v3. so the institution will have to make their code available for the community to benefit. Something that for profit institutions are highly allergic to (severe CIO rashes, and COO anaphylactic shocks)
And then can you turn back to the IRS and say that because the licensing schema, if a for profit makes use of the code, it forced to be used for the benefit of the community and not just for their profit?
Or maybe there is the need of a GPL v4 where you cannot make profit using the code released?
That would violate freedoms 2 and 3 of the Free Software definition.
It's a shame. That kind of stupidity, shown by IRS, deserves to be penalized.
Two options from the paranoid:
Somebody influences IRS to stifle open source? Who may that be?
IRS thinks they can make enough wool by shaving pigs? That's desperate.
They should better figure out how to dismember Apple than do what they do. It's a disgrace.
Its not "ridiculing". Its applying the law and existing precedent to the specific facts presented by Yorba. It may be wrong, but reading the whole letter it seems like its more that Yorba did a poor job at explaining how it met the 501(c)(3) requirements, including when responding to specific inquiries by the IRS.[1]
(It'd be interesting to get the application and other documents and compare them to those of, e.g., the Apache Software Foundation, Mozilla Foundation, and other open-source entities that have gotten 501(c)(3) status and see if its really that the IRS decision here is out of line with other ones in similar areas or if its just Yorba's documentation and explanations that are the issue.)
[1] http://yorba.org/docs/IRS-determination-letter-final.pdf
(I might have made that up.)
There are weaker software patent laws in Europe,they exist but are very limited.
On the other hand Taxes are generaly higher,employement cost is higher and VC funding is close to non existant.But you might get financed by public money(with strings attached and a lot of paperwork ) So it's a trade-off.
From a pure "capitalistic" perspective the situation is better for startups in USA in the west coast.And since Europe is not really a country,it's harder to reach all European markets(different languages,cultures,fiscal policies,laws...).In USA everybody talks English.