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- Herausgeber: John Wiley & Sons
- Kategorie: Fachliteratur
- Serie: Wiley Nonprofit Authority
- Sprache: Englisch
Solid guidance for the complex legal issues faced by international nonprofits When a nonprofit operates across borders, whether by making grants or directly operating programs, the interaction among legal requirements of two or more countries quickly becomes highly complex. How To Be A Global Nonprofit fills a need for legal and practical guidance for nonprofit organizations with international activities, and includes ten case studies to provide insights into the ways real organizations have dealt with various legal and practical issues. Along the way, it skillfully explores alternatives for advancing a nonprofit's mission across borders, while also looking at the legal and practical issues nonprofits encounter as they work internationally. * Includes ten case studies based on interviews with large and small international nonprofits * Offers a realistic sense of the complexity of legal and practical issues global nonprofits face * Features a companion website with a variety of online tools and materials related to key concepts discussed in this book Not long ago international philanthropy was the province of large organizations like the Red Cross, UNICEF, and Save the Children. This has radically changed. How to Be a Global Nonprofit thoroughly explores the legal and practical issues nonprofits encounter as they work internationally and the resources required to deal with them.
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Veröffentlichungsjahr: 2013
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Contents
Cover
Title Page
Copyright
Dedication
List of Case Studies
Preface
How to Use This Book
Disclaimer
Internal Revenue Service Circular 230 Disclosure
Acknowledgments
Chapter 1: So You Want to Be a Global Nonprofit?
1.1 What Do You Really Want to Accomplish?
1.2 Spectrum of International Activities
1.3 Overview of International Grantmaking
1.4 Directly Operating Foreign Programs
1.5 Global Fundraising
1.6 Legal Considerations: A Basic Framework
1.7 The Importance of Vigilance
1.8 So, You Still Want to Be a Global Nonprofit?
Chapter 2: International Grantmaking by Public Charities
2.1 Public Charity or Private Foundation: Why Does It Matter?
2.2 What is a Public Charity?
2.3 Basic Rules for Foreign Grantmaking
2.4 American Friends of Organizations
2.5 Special Rules for Donor-Advised Funds
2.6 Other U.S. Intermediaries
2.7 Review and Further Considerations
Chapter 3: International Grantmaking by Private Foundations
3.1 What is a Private Foundation?
3.2 Should a Private Foundation Make Cross-Border Grants?
3.3 Permitted Grants and Disbursements
3.4 International Grantmaking: Special Requirements for Private Foundations
3.5 U.S. Withholding Tax on Disbursements of Grant Funds
3.6 Review and Further Considerations
Chapter 4: Going Deeper: Operating a Foreign Program
4.1 Are You Determined to Move Beyond Grantmaking?
4.2 Is Anybody Else Doing It?
4.3 Are You Sure You will be Allowed to Do What You Want to Do?
4.4 Alternative Models for Operating a Foreign Program
4.5 Establishing a Foreign Office
4.6 Do You Need to Do It Alone?
4.7 Staffing a Foreign Office: Consequences to the Organization
4.8 Will Your U.S. Organization Be Taxed by a Foreign Country?
4.9 What Happens If Your Organization Conducts Business Activities in a Foreign Country?
4.10 Foreign Reporting Requirements
4.11 U.S. Reporting Requirements
4.12 Review and Further Considerations
Chapter 5: Forming and Operating through a Foreign Legal Entity
5.1 Establishing a Foreign Legal Entity
5.2 How Hard Will It Be to Form a Foreign Legal Entity?
5.3 What Kind of Legal Entity Should You Create, and Why Should You Care?
5.4 Do You Want a Model of Control or Collaboration, or Both?
5.5 Control
5.6 Collaboration
5.7 Two Case Studies: One Very Large and One Very Small Organization
5.8 Headquarters Offices: Centralized versus Decentralized Services
5.9 Shared Employees
5.10 Will a Foreign Legal Entity Be Tax-Exempt in Its Local Country?
5.11 Will a Foreign Legal Entity Be Taxed in the United States?
5.12 The Importance of Keeping U.S. and Foreign Activities Separate
5.13 Consider the Burdens of Maintaining Two or More Separate Legal Entities
5.14 For-Profit Subsidiaries
5.15 Soliciting Funds from U.S. Donors
5.16 Review and Further Considerations
Chapter 6: Staffing Foreign Operations: Employees and Volunteers
6.1 Staffing Foreign Operations: Will You Send U.S. Staff or Hire Locally?
6.2 Sending People Overseas: Initial Considerations
6.3 If You Send U.S. Employees to Work in a Foreign Country, Will They Be Taxed There?
6.4 If Your Employees Are Taxed in a Foreign Country, Will They Still Be Taxed in the United States?
6.5 Making Payments to People Working in Foreign Countries
6.6 Hiring Locally
6.7 Hiring or Sending Non-U.S. Citizens/Residents to Work in the United States
6.8 Special Considerations for Volunteers
6.9 Review and Further Considerations
Chapter 7: Raising Funds Globally
7.1 Why Do You Want to Raise Funds in a Foreign Country?
7.2 Will You Be Permitted to Solicit Contributions in a Foreign Country?
7.3 Does the Foreign Country Provide Tax Benefits, and Are They Important to Your Donors?
7.4 Is a Separate Legal Entity Required?
7.5 Tax Benefits for Cross-Border Philanthropy
7.6 Exceptions to the Separate Legal Entity Requirement for Fundraising in Foreign Countries
7.7 Structuring Relationships among Fundraising and Operating Entities
7.8 Keep It as Simple as Possible
7.9 Review and Further Considerations
Chapter 8: Additional U.S. Laws and Reporting Requirements
8.1 Anti-Terrorism Compliance
8.2 Export Controls
8.3 Anti-Boycott Rules
8.4 Anti-Bribery Rules
8.5 Lobbying and Political Activity
8.6 Foreign Funding of Lobbying and Propaganda
8.7 U.S. Individuals Working in Foreign Countries
8.8 Non-U.S. Individuals Working in the U.S.: Verifying Legal Status
8.9 Financial Reporting
8.10 U.S. Tax Reporting of Foreign Activities
8.11 U.S. Tax Withholding on Payments to Non-U.S. Citizens or Residents
8.12 Reporting of Foreign Financial Assets
8.13 Review and Further Considerations
Chapter 9: Additional Foreign Legal and Practical Considerations
9.1 Finding the Right Local Counsel
9.2 Anti-Terrorism Restrictions
9.3 Restrictions on Cross-Border Funding
9.4 Restrictions on Sending Goods across Borders
9.5 Anti-Bribery Laws and Avoiding Corruption
9.6 Restrictions on Political Activity and Lobbying
9.7 Protecting Trademarks, Copyrights, and Other Intellectual Property
9.8 Data Privacy Laws
9.9 Privacy
9.10 Managing Multiple Currencies and Currency Controls
9.11 International Travel and Security
9.12 Insurance Matters
9.13 Acquiring Real Estate
9.14 Value Added Tax (VAT)
9.15 Other (Non-Income) Taxes
9.16 Governmental Reporting Requirements: Financial, Tax, and Others
9.17 Market and Political Impact of Foreign Direct Services
9.18 Review and Further Considerations
Chapter 10: Evolution of a Global Organization: Half the Sky Foundation
10.1 Seeing a Need and Addressing It with Passion
10.2 Half the Sky's Experience in China
10.3 Legal Status of HTS in China
10.4 What Has HTS Learned about Working in China?
10.5 Developing a Global Fundraising Network
10.6 Closing Thoughts
Appendix A: Glossary of Terms
Appendix B: Additional Resources
Resources for 501(c)(3) Organizations
Resources for Private Foundations
International Activities of Nonprofit Organizations
U.S. Intermediary Organizations for International Grantmaking
Resources for Cross-Border Grantmakers
Resources for Finding International Collaborators
Resources on Foreign Country NGO Laws
Avoiding Participation in Corruption (Anti-Bribery)
Updates on Anti-Terrorism Policies and Their Impact on Nonprofit Organizations
Intellectual Property
Appendix C: U.S. Bilateral Income Tax Treaties
About the Companion Website
About the Author
Index
Copyright © 2012 by Lisa Norton. All rights reserved.
Published by John Wiley & Sons, Inc., Hoboken, New Jersey.
Published simultaneously in Canada.
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Library of Congress Cataloging-in-Publication Data:
Norton, Lisa, 1956–
How to be a global nonprofit: legal and practical guidance for international activities/Lisa Norton.
p. cm.
Includes index.
ISBN 978-1-118-45222-6 (cloth/website); 978-1-118-53467-0 (ebk); 978-1-118-53468-7 (ebk); 978-1-118-53472-4 (ebk) 1. Nonprofit organizations—Law and legislation—United States. 2. Nonprofit organizations—Law and legislation. I. Title.
KF1388.N68 2013
346.73′064—dc23
2012037488
To Harvey, my husband of 20 years, who has been mygreatest cheerleader throughout this project,and to my four children,Wendy, Nat, Naomi, and Ruby,who suffered through innumerable discussions of this topic.
List of Case Studies
Chapter 1So You Want to Be a Global Nonprofit?Families with Children from ChinaPangea Giving (Pangea)SightLife—Scaling Local Operations for Global ImpactChapter 4Going Deeper: Operating a Foreign ProgramWorld Association for Children and Parents (WACAP)Agros InternationalChapter 5Forming and Operating through a Foreign Legal EntityAshesi University (Ashesi)World VisionLumanaSocial Venture Partners International (SVPI)Chapter 10Evolution of a Global Organization: Half the Sky FoundationPreface
It was not very many years ago that international philanthropy was the province of large organizations like the Red Cross, UNICEF, and Save the Children. Americans who wanted to help people overseas gave to those organizations and others like them. For donors who wanted a more personal connection, some organizations offered individual child sponsorship, which allowed donors to see the direct impact of their giving.
In recent years, while large global organizations have continued to attract funding, there has been a new groundswell of small and medium-sized organizations, formed by growing numbers of individuals who want to do more than write a check or even sponsor a child. This phenomenon was described by Nicholas Kristof in a New York Times Magazine article in which he coined the term “Do-It-Yourself Foreign Aid,” to identify a revolution that “starts with the proposition that it's not only presidents and United Nations officials who chip away at global challenges.”
Kristof noted that the young idealists he was describing are sometimes naive about what it takes to solve social problems, and don't always appreciate the need to work collaboratively with the local populations they intend to serve. This book focuses on another set of issues not readily apparent to the passionate leaders of the Do-It-Yourself Foreign-Aid Revolution: the myriad and diverse legal considerations that must be taken into account in planning and operating any nonprofit organization with cross-border activity.
A new army of international philanthropists is boldly forging ahead, creating nonprofit organizations, raising funds in the United States and sometimes abroad, traveling overseas, building relationships with foreign individuals, organizations, and governments, and even hiring local employees. The new international nonprofits they create often have all, and sometimes more, of the passion and commitment found in their larger counterparts. What they often lack are the resources to engage staff and consultants to ensure that they comply with U.S. and foreign laws while keeping their eyes on the mission.
While it is widely recognized that the Internet and social media have eliminated jurisdictional boundaries in so many ways, legal boundaries are alive and well. Individual countries enact and enforce their own laws and work hard to protect their tax revenues. In fact, as we will see throughout this book, legal and tax barriers imposed by individual countries impede the cross-border activities of nonprofits to a far greater degree than they affect international trade.
The operations of nonprofit organizations, in the United States and abroad, are shaped by a variety of laws: notably, those addressing legal structure and governance (such as formation of nonprofit corporations); taxation (including income, estate, sales, excise, property, import duties, and more); anti-terrorism; exports; currency; corruption; immigration; and labor. In some countries, restrictions on the freedom of association preclude or hamper nonprofit organizations. When an organization operates across borders, whether by making grants or directly operating programs, the interaction among legal requirements of two or more countries quickly becomes highly complex.
This book is intended primarily for nonprofit organizations that qualify for U.S. federal tax-exempt status, as so-called 501(c)(3) organizations, and operate and/or fund non-U.S. programs. While there are many categories of U.S. tax-exempt organizations, the 501(c)(3) is the only one (with narrow exceptions) that can attract tax-deductible funds in the United States. While this type of organization may directly operate or fund foreign programs, those foreign programs must also serve 501(c)(3) purposes. A broad range of organizations falls into the 501(c)(3) category, including, among others, those that are engaged in traditional charitable activities such as humanitarian aid, disaster relief, development, global health, the environment, and scientific research.
We will see in this book that any particular foreign country may or may not afford tax-exempt status to an activity that would qualify for it in the United States. Moreover, if in addition to operating foreign programs, an organization is raising funds in one or more foreign countries, it will need to deal with yet another set of rules and restrictions on the use of those funds.
At times, this book uses the word charitable to refer to the range of activities that may be performed in any particular country by an organization that qualifies for tax-exempt status. In some countries, notably throughout most of Europe, the term public benefit is used instead.
An organization that raises funds in the United States and conducts activities in a foreign country must not only comply with the laws of two countries, but must also consider the interaction of those laws and their effect on operational decisions.
If your organization contemplates venturing beyond U.S. borders, you need to address a number of questions:
Will the foreign project be managed and operated by U.S. staff and volunteers, or will you hire locally? If you send U.S. citizens overseas, will your organization be able to compensate them for additional taxes and housing costs? Will U.S. people even be able to obtain visas? If you hire locally, will you need to form a separate nonprofit corporation (or the local country equivalent)? How will you manage cash flows and investments between countries in two or more currencies?
In addition, oversight of foreign operations and funds is essential, but it means there will be people traveling to places that are often difficult and expensive to get to. Here are some fundamental questions to be addressed:
How will your organization ensure the security of people traveling to remote and sometimes dangerous locations?What kinds of communications technology will you need to maintain contact among various locations, and what will that cost?As nonprofit organizations expand internationally, they frequently underestimate the resources required to manage a multinational structure. A passionate founder can quickly find that he or she, together with board members who joined to support the mission, are spending most of their time on administrative matters. Failure to devote the necessary resources to legal, tax, treasury, and other so-called overhead functions will cause an organization to fail, yet funders are often unwilling to support these functions adequately.
All too often, in my legal practice, I have encountered passionate individuals who have barreled down the road, starting up operations, only to run into legal or practical problems that could have been avoided with awareness of some fundamentals. While this book cannot substitute for individualized legal advice, it arms the would-be global nonprofit with knowledge of critical considerations.
Knowledge of the basic legal and practical issues that face international nonprofits will help you make important decisions to give your organization the best chance of success in pursuit of its mission. You will also gain an understanding of the resources required to pursue your mission. By knowing how and where you can run into trouble, you will know when to seek help.
Over Thanksgiving dinner, a friend asked me to describe this book. When I finished, he commented that it sounded like I was trying to discourage people from starting international nonprofits. My purpose is not to deter people from pursuing their passion, but rather to help them find the most effective way to achieve their goals. In truth, many nonprofit organizations fail, particularly in the international arena, because their founders were not prepared to raise the funds and devote the resources necessary to grapple with the puzzling array of legal and practical hurdles described in this book.
In many cases, available resources could have been used more effectively by working with, or through, an existing organization, rather than starting a new one. We will see, in the case study of Families with Children from China, that it may be possible to have your cake and eat it too. If you can find the right foreign partner, you may be able to participate in the development and implementation of projects without having to operate them directly.
At the same time, people start international nonprofits for many valid reasons. Throughout this book you will encounter inspiring stories of successful organizations. Case studies of Ashesi University and Half the Sky Foundation show that sometimes a founder may succeed with an audacious project where there is simply no one else willing to take it on. The case study of Lumana provides an example of a young person who was determined to create opportunities for other young people to gain hands-on experience that wasn't available to them through established organizations.
Whatever motivates you to consider starting a global nonprofit, my goal is to help you make informed decisions about what it will take, and how best to pursue your mission. There are so many global issues waiting to be addressed, and so many people with passion. My sincere hope is that adding a touch of realism will help those passionate people succeed in making a difference in the world.
How to Use This Book
While all readers are invited to read this book cover-to-cover, many will hone in on certain chapters. I have included case studies throughout the book to illustrate the variety of ways U.S.-based organizations, from the largest to the smallest, have approached entering the international arena, and how they have dealt with a variety of legal and practical concerns.
If you are new to the realm of international nonprofits, you may find it useful to begin with Chapter 1, which provides an overview of the ways an organization can engage in international activities. On the other hand, if you have an established organization with international activities, you may find Chapters 8 and 9 useful as checklists of U.S. and foreign issues you need to consider.
This book addresses legal and practical considerations for organizations that are exclusively grantmakers, as well as those that directly engage in foreign activities. Chapters 2 and 3 provide an overview of U.S. legal requirements for organizations that make cross-border grants, and Appendix B lists a number of resources for those organizations. Many organizations that directly operate foreign programs also engage in some form of grantmaking, and therefore need to be concerned with the rules for international grantmaking. However, for most organizations either Chapter 2 or 3, but not both, will be relevant, as they address two distinct types of 501(c)(3) organizations, so-called public charities and private foundations.
The remainder of this book (Chapters 4 through 10) is devoted to those organizations that choose to go an extra step, or more, by operating directly in one or more countries outside the United States. Chapter 4 explores some alternatives to acting alone when creating a foreign program, and then looks at alternative ways of structuring foreign operations. Chapter 5 takes that a step further, exploring the creation of a separate foreign organization, or so-called legal entity, and the considerations involved in structuring the relationships among separate operations in multiple countries.
Chapter 6 looks at legal, tax, and practical considerations related to staffing foreign operations with any combination of U.S. and foreign employees and volunteers.
Chapter 7 takes it all a step further, looking at raising funds in foreign countries.
Chapters 8 and 9 provide a checklist of U.S. and foreign (respectively) legal and practical concerns. If you have already read the earlier chapters, or already have an established foreign presence, this will take you a step further. Chapter 9 provides an overview of significant foreign laws and practical issues you are likely to encounter and gives specific country examples.
Finally, Chapter 10 puts it all together with a story. This is the story of one organization that went from start-up to global nonprofit in a short 13 years. That is not for everyone. But if you have a compelling mission and extraordinary passion, and you're prepared to devote the resources to getting it right, you too may create a global nonprofit.
No part of this book requires that the reader have a legal background. Rather, this book provides a basic overview of the legal landscape for international nonprofit activities so that nonprofit founders, directors, and managers can make informed decisions about how best to structure operations and plan for the use of scarce resources. For those who are interested in more depth (such as lawyers and others with some knowledge of nonprofit law), I have included references and citations to facilitate further research.
In some places, I felt it was important to go into greater depth to help set the stage for fundamental decisions about structuring operations. For example, Chapter 6 discusses the implications of U.S. income tax treaties at some length. While this is intended as helpful background, if you find it to be too much information, you can simply skip those sections. You may, however, want to make a note of the issue so you can discuss it with your lawyer.
Disclaimer
This book is not a substitute for obtaining individualized legal advice. It does not provide legal, tax, accounting, or other professional advice. No attorney-client relationship is established. Rather, the purpose of this book is to help an organization, its founders, directors, officers, and advisors, in making decisions about how to structure international activities.
The publisher and author make no representations regarding the accuracy or completeness of the contents of this book, and specifically disclaim all warranties of fitness for a particular purpose.
The proper interpretation and application of U.S. and foreign laws are highly dependent on specific facts. Laws also change constantly. An organization will need to seek individualized legal advice in the United States and each foreign country in which it operates.
Descriptions of U.S. laws in this book are intended to provide general information that can be used to help guide an organization in making decisions about its operational model, and in understanding the resources required to launch and operate an international nonprofit.
References to foreign laws are provided for purposes of illustrating, in general, the kinds of foreign constraints an organization may face, and how U.S. and foreign requirements interact. Descriptions of foreign laws in this book should not be relied on in forming or operating a nonprofit organization.
This book does not provide a comprehensive overview of U.S. and foreign laws that may apply to the activities of a particular organization. Although I have endeavored to provide an overview of the fundamental U.S. and foreign legal considerations to be taken into account by any international nonprofit organization, additional U.S. and/or foreign laws may be critical to any particular organization.
Websites referenced in this book may have disappeared, or their contents may have changed, between the time the book was written and the time it is read.
This book does not address the ethics of foreign aid, or issues around determining what is and is not appropriate in a particular foreign context.
Internal Revenue Service Circular 230 Disclosure
This book is intended for general informational purpose and is not intended to provide tax advice. As provided in Treasury regulations, nothing in this book is intended or written to be used, and cannot be used for the purpose of (1) avoiding penalties under the Internal Revenue Code, or (2) promoting marketing or recommending to another party any plan or arrangement addressed herein.
Notes
1. Nicholas D. Kristof, “The D.I.Y. Foreign-Aid Revolution,” New York Times Magazine, October 24, 2010, 49, available at www.nytimes.com/2010/10/24/magazine/24volunteerism-t.html.
2. A so-called 501(c)(3) organization is one that qualifies for U.S. federal tax-exempt status under section 501(c)(3) of the Internal Revenue Code (I.R.C.), 26 U.S.C. § 501(c)(3). To qualify for 501(c)(3) status, an organization must be formed for one of the following purposes: religious, charitable, scientific, testing for public safety, literary, educational, or fostering amateur national or international sports competition, or the prevention of cruelty to children or animals. Additional requirements apply. For a description of the requirements and process for obtaining federal tax-exempt status under section 501(c)(3), see IRS Publication 557, Tax-Exempt Status for Your Organization (December 2, 2011), available at www.irs.gov/app/picklist/list/publicationsNoticesPdf.html.
Acknowledgments
I would like to acknowledge and thank so many people who provided invaluable input, insights, helpful comments, and support, without which this book would not have been possible.
I extend my deep appreciation to the representatives of the 10 nonprofit organizations who consented to be interviewed for case studies: Cathy Reilly of Agros International; Matthew Taggart and Nina Marini of Ashesi University; Aileen Kroger of Families with Children from China, Inc. of Greater New York; Jenny Bowen of Half the Sky Foundation; Sammi Raynor of Lumana; Allan Paulson and Linda Mason of Pangea Giving; Ruth Jones of Social Venture Partners International; Timothy Schottman of SightLife; Lillian Thorgersen of World Association for Children and Parents; and Timothy Burgett of World Vision International.
I also thank a number of individuals who generously donated their time to provide helpful comments and suggestions: Putnam Barber, Edward Diener, Mary Lou Fahey, Dorothy Foster, Bookda Gheisar, Kristi Helgeson, Ellen Jesse, Joelle Keene, Harvey Motulsky, Jeanette Ruby, and Thomas Schroeder.
I sincerely thank my publisher, John Wiley & Sons, and editors, Susan McDermott, Jennifer MacDonald, and Stacey Fischkelta.
Chapter 1
So You Want to Be a Global Nonprofit?
1.1 What Do You Really Want to Accomplish?
Why are you passionate about getting involved with global issues? Have you observed a need that tugs at your heartstrings? Do you want to make a measurable impact? Do you want to experience the personal rewards that come from helping people in need? Do you feel driven to make a difference by doing something no one else is doing?
These are questions to ponder before launching a nonprofit organization that works across borders. The answer to each of these questions may lead you to a different kind of organization. For example, you may be able to have the greatest impact by funding existing programs, while avoiding the administrative costs of operating your own. If you desire a more personal experience, you might consider collaborating with an existing organization by providing volunteer support as well as funding. On the other hand, you may have a strong vision that requires launching your own program in a foreign country. In that case, you must be prepared to devote resources to deal with a host of administrative, legal, and practical matters before you even start operating.
1.2 Spectrum of International Activities
You can think about international nonprofit activities on a spectrum, from minimum to maximum levels of foreign engagement. On the minimal end of the spectrum lies the U.S. charity that makes grants to U.S. or foreign organizations that operate, or support operations, in foreign countries. On the other end lies the truly global organization that has offices, employees, and donors around the world. As you move along the spectrum of international activities, you will encounter more complex legal issues and practical challenges. An organization may start at the minimal end and evolve in complexity over time, or it may decide to jump in with both feet from the outset.
Example: Assisting Orphans in Foreign Countries
To illustrate how a single charitable purpose can be served by operating at different points along the spectrum of international activity, here are four examples of U.S.-based 501(c)(3) organizations that chose different paths to assist orphanages in foreign countries:
Each of the organizations described above has to be concerned with a variety of U.S. laws that apply specifically to international activities and, at least to some extent, with the legal requirements of one or more foreign countries. The legal and practical considerations, both U.S. and foreign, become increasingly complex as your organization becomes more directly and deeply involved in operations outside the United States.
The remainder of this chapter provides an overview of the basic models for conducting international activities, and a framework for identifying the legal and practical considerations you'll need to know about. The remaining chapters further explore these models, and delve more deeply into important legal and practical issues.
1.3 Overview of International Grantmaking
While international grantmaking entails less complexity, and less administrative cost, than does running a full-fledged operation in a foreign country, grantmaking itself runs across a spectrum of activity. As you become more directly engaged with foreign organizations, you will face more legal and practical complexity.
For purposes of this discussion, international grantmaking includes any form of support that is intended for use outside the United States for a charitable (501(c)(3)) purpose. Grantmaking may take the form of providing cash or gifts in kind. Grants may be made directly to individuals, local nongovernment organizations (NGOs) that provide direct services, or to foreign governments.
If you are contemplating international grantmaking, you need to think about whether you want to work with an intermediary organization, which may be based in the United States or in a foreign country. Alternatively, you may want to provide funds directly to organizations that operate their own programs in foreign countries.
An intermediary organization is one that provides funds to, and typically monitoring of, programs operated in one or more foreign countries by foreign organizations or governmental bodies. Working with an intermediary can be a great way for a nonprofit to enter the international arena. You will avoid the need to manage personnel remotely, to comply with local laws, and to deal with all of the administrative complexities of delivering services, or even sending funds, overseas. At the same time, this can be a way for you to learn about how to work in a particular geographic area. By working with an experienced organization whose mission is similar to yours, you can learn a lot about what a particular population needs, and how to serve those needs most effectively.
Ultimately, you may decide that working with one or more U.S. or foreign intermediaries, or even funding foreign organizations that directly operate programs, strikes the right balance. This can afford your organization an opportunity to make a real impact without enormous administrative effort and costs. You can leverage what others have already learned, giving your dollars maximum impact.
The U.S. legal requirements for international grantmaking differ depending on whether the grantmaking organization is classified as a so-called public charity or private foundation. Chapter 2 deals with public charities, while Chapter 3 deals with private foundations.
If you desire more direct involvement, by operating your own foreign programs, you will need to be prepared to devote significantly more time and resources. You will face practical, and often complex, questions about how best to deliver services to the intended population. You will also need to deal with a host of legal and practical issues, in the United States and abroad. Chapters 4 through 7 explore models for operating foreign programs directly, while Chapters 8 and 9 address additional legal and practical considerations you are likely to encounter, in the United States and abroad.
Funding through a U.S.-Based Intermediary
At one end of the grantmaking spectrum, your organization may choose to support a U.S.-based 501(c)(3) organization that makes contributions to foreign organizations. This can be a good way to start if your organization has no existing relationships in the country you want to work in. By working with a U.S.-based organization, you can learn a lot about the opportunities and challenges involved in supporting programs in a particular country. In fact, you don't even need to have formed your own 501(c)(3) organization to get started this way.
There are some large U.S.-based organizations that support a variety of interest fields and provide a wide range of services. These organizations frequently operate as so-called donor-advised funds (see section 2.5), accepting contributions from donors who make non-binding requests that the funds be granted to particular foreign organizations. For example, Give2Asia (www.give2asia.org) operates in more than 20 countries throughout Asia, and maintains staff and/or advisors in each country. Give2Asia will provide you with advice and assistance to decide which programs you wish to support. It also devotes resources to seeking out worthy recipients of aid, vetting those organizations and monitoring the use of funds. This relieves your organization of the legal, and practical, need to exercise extensive oversight, allowing you to devote your scarce resources to the programs you are supporting.
A few other large, U.S.-based intermediaries are Charities Aid Foundation (www.cafamerica.org), Tides Foundation (www.tides.org), and United Way International (worldwide.unitedway.org).1 Of course, you may also know of a smaller 501(c)(3) organization that funds, or even directly operates, in the geographic area where you want to work. You can start out by funding such an organization as a way to learn about the local environment.
A U.S. intermediary will most likely charge administrative fees. These fees may include a one-time set-up fee, and an annual fee based on a percentage of assets held in a fund a donor has created. While the fees may seem high, you should consider what it would cost your organization to administer a cross-border grantmaking program. After assessing the costs of complying with the requirements outlined in Chapter 2 or 3 (as appropriate to your organization), you may find that working through a U.S. intermediary is a cost-effective way to achieve your purposes.
While funding through a U.S.-based intermediary is a relatively easy way to get started with supporting programs outside the United States, the trade-off is that you will not experience a direct relationship with the foreign programs you want to support. Moreover, these U.S. intermediary organizations cannot make a legally binding commitment to direct your funds to the foreign organization or project you select. You can only recommend that the organization use your contribution in the way you desire. This is explained further in Chapter 2.
Funding through a Foreign Intermediary
If you choose to fund a foreign, rather than a U.S. intermediary, you will need to form your own U.S.-based 501(c)(3) organization in order to attract contributions that are tax-deductible for U.S residents. A foreign country intermediary can serve as the eyes and ears on the ground for your organization by helping to vet potential projects, and it can assist with monitoring the use of funds.
There are multitudes of foreign intermediary organizations that have developed expertise in providing aid to service providers in their local countries.2 Many of these foreign intermediary organizations operate like community foundations, and can direct contributions to particular fields of interest. These intermediaries have staff and/or advisors, as well as experience in the countries they serve. If your organization does not have the resources to carefully vet and monitor the local country organizations you support, an intermediary organization may give you the greatest bang for your buck. Or, it may allow you to start pursuing your mission while learning what you need to know about working in the country of your choice.
Of course, even if you choose to work with a large, well-respected foreign intermediary, your organization will need to adopt policies and procedures to ensure that your funds are used for the intended purposes, and to comply with U.S. laws (discussed in Chapters 2 and 3). Stories of disappearing funds are rampant in the world of international aid. Two notorious examples of extensive misuse of charitable funds occurred in 2011 in China, where, as reported by the South China Morning Post, two of China's largest charities, the Red Cross Society of China and the China Charity Federation, were found to have improperly channeled charitable funds to private business interests.3
The following case study is an example of one organization that did its homework and found a foreign intermediary that served its objectives. The result was a long-term relationship in which the U.S. funder participated in project development, and even initiated projects. Sustaining such a relationship is not an easy task, but neither is operating a foreign program of your own. The key point here is to think about what you are prepared to take on, and how you can best achieve your objectives with the resources you have.
Directly Funding Foreign Programs
If you want to be more involved with foreign projects, you may want to fund one or more foreign organizations that directly operate programs. Here again, you will need to form your own U.S.-based 501(c)(3) organization in order to attract contributions that are tax-deductible for U.S residents.
You might consider forming a so-called American friends of organization, for the primary purpose of supporting a particular foreign NGO. Alternatively, your U.S. organization may want to support multiple foreign organizations. In either case, the U.S. grantmaking organization is required to vet its grantees and the projects it funds, and to monitor the use of grant funds. Your U.S. grantmaking organization may choose to become involved in the planning and implementation of the foreign projects it funds, and in some cases may even obtain the right to appoint and remove some or all of a foreign grantee's board members. Alternative ways of structuring such legal relationships are discussed in Chapter 5.
1.4 Directly Operating Foreign Programs
Direct foreign operations run across their own spectrum, with foreign country activities ranging from collaboration with a foreign organization to operating an independent program. At some point, your organization may engage a foreign consultant to oversee the operation. Later, perhaps it will hire a full-time employee. This may require registrations or permissions. Once registered, the organization may have tax obligations, or may obtain tax-exempt status. It may have to withhold employment taxes and pay social taxes on behalf of its employees. Even if the organization is exempt from income taxes on contributions it receives, it may have to pay value added taxes (VAT) on purchases it makes. There may be import duties on goods shipped into the country.
If you are hiring outside the United States, or even sending U.S. staff or volunteers, you may need or want to create a separate, foreign nonprofit corporation, or something similar to a nonprofit corporation under the particular foreign country's laws. You will still need to maintain a separate U.S. 501(c)(3) organization, assuming you want to raise funds from U.S. taxpayers. You may want the organization you founded in the United States to have some form of control over the foreign operations. Or, you may want the foreign organization to operate autonomously but coordinate with the U.S. organization in setting strategy. You can usually achieve the relationship you want, but how you do it will require knowledge of the foreign country's laws, and how they interact with U.S. legal considerations. You will need to work with both U.S. and foreign attorneys. This is discussed in Chapter 5. Now, you can envision your hard-won contributions going to pay legal fees before you have even started to operate a program!
By the time you have calculated all of the costs of maintaining a local office, and considered the costs of hiring attorneys, and perhaps other consultants, to help you comply with foreign requirements, you may conclude that you're better off partnering with an established organization. Or, you may decide it makes sense to launch your own foreign operation because your organization is uniquely suited to deliver the program you envision.
Regardless of where you end up, working through all of these issues in advance will help your organization to decide what is the most efficient way to make use of the resources it has.
The following case study is an example of one organization that decided to widen its reach beyond the United States, by contributing its knowledge and expertise, to help foreign organizations to replicate its programs in their own countries.
