Nonprofit Law and Governance For Dummies
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Issues of executive compensation and governance are closely intertwined thanks to the influence of the Sarbanes-Oxley Act (SOX). The IRS is always concerned as to whether governing boards of nonprofit organizations exercise a sufficient degree of due diligence in setting the compensation for leaders of their organizations. The media seems to delight in reporting on executives of both private foundations and public charities who are receiving what many consider to be unreasonably large compensation packages.

When talking compensation, the IRS believes that exempt organizations should focus on five key governance areas:

  • Creating legal structures: Every board should strive to set compensation in advance by disinterested board members on the basis of appropriate comparability data.
  • Reporting all the benefits: This means timely reporting of all economic benefits to officers, directors, and key employees on IRS Form 990.
  • Being timely: Organizations should take care to report the benefits in the time period that they're paid.
  • Staying accountable: Boards that delegate compensation issues to committees still have the ultimate responsibility over the compensation decision.
  • Avoiding payments to private individuals: The Internal Revenue Code says that the assets of an organization can't be diverted for the benefit of private individuals. If an organization pays or distributes assets to insiders in excess of the fair market value of the services rendered, it's running afoul of this rule, and the organization can lose its tax-exempt status.

Exempt organizations are generally safe if they develop and follow procedures for setting compensation and if they make honest, responsible efforts in line with their size and revenues to determine what the appropriate level of compensation is.

Neither a public charity nor a private foundation can pay more than reasonable compensation without running afoul of IRS issues. And reasonable compensation is determined by weighing all facts and circumstances, considering the market value of the services performed. Generally, reasonable compensation is measured with reference to the amount that would ordinarily be paid for comparable services by comparable enterprises under comparable circumstances.

About This Article

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About the book authors:

Jill Gilbert Welytok, JD, CPA, LLM, practices in the areas of corporate law, nonprofit law, and intellectual property. She is the founder of Absolute Technology Law Group, LLC ( She went to law school at DePaul University in Chicago, where she was on the Law Review, and picked up a Masters Degree in Computer Science from Marquette University in Wisconsin where she now lives. Ms. Welytok also has an LLM in Taxation from DePaul. She was formerly a tax consultant with the predecessor firm to Ernst & Young. She frequently speaks on nonprofit, corporate governance–taxation issues and will probably come to speak to your company or organization if you invite her. You may e-mail her with questions you have about Sarbanes-Oxley or anything else in this book at [email protected]. You can find updates to this book and ongoing information about SOX developments at the author’s website located at

Daniel S. Welytok, JD, LLM, is a partner in the business practice group of Whyte Hirschboeck Dudek S.C., where he concentrates in the areas of taxation and business law. Dan advises clients on strategic planning, federal and state tax issues, transactional matters, and employee benefits. He represents clients before the IRS and state taxing authorities concerning audits, tax controversies, and offers in compromise. He has served in various leadership roles in the American Bar Association and as Great Lakes Area liaison with the IRS. He can be reached at [email protected].

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