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SHAKESPEARE THEATRE COMPANY, et al., Plaintiffs, v. LANSBURGH THEATER, INC., et al., Defendants. 2012 CA 004971 B Judge: John Ramsey Johnson Next Event: Initial Conference 9:30 am, Friday, September 21, 2012
DECLARATION OF ROGER COLINVAUX I, Roger Colinvaux, declare under penalty of perjury as follows: 1. I submit this declaration in support of Shakespeare Theatre Company (“STC”)’s motion for preliminary injunction. 2. matter. 3. I am an Associate Professor at the Catholic University of America, Columbus School of Law, and teach in the areas of federal income tax, legislation, and property. 4. Attached hereto as Exhibit A is a true and correct copy of my curriculum vitae. I have been retained by STC to provide expert opinion and testimony in this
5. I have deep and substantial familiarity with Section 509(a)(3) of the Internal Revenue Code and the requirements for supporting organizations. 6. As lead counsel to the Congressional Joint Committee on Taxation, I was significantly involved in the drafting of federal supporting organization legislation in 2006, which resulted in reforms that tightened tax law requirements for supporting organizations. 7. My continuing professional work focuses on the federal tax rules applicable to 501(c)(3) organizations, including through recent Congressional testimony before both Houses of Congress, and scholarly publications, such as “Charity in the 21st Century: Trending Toward Decay” in the Florida Tax Review, in which the impact of the new supporting organization legislation is discussed. I am also regularly consulted by major media outlets for my opinion on charities and the tax law, and serve or have served on significant boards and committees regarding the law of 501(c)(3) organizations, including the D.C. Bar, the Urban Institute, and the National Center on Philanthropy and the Law at New York University. 8. I have reviewed the relevant materials in connection with this case, including the Articles of Incorporation and Bylaws for Lansburgh Theatre Inc. (“LTI”), the parties’ leases, LTI’s tax filings, property documents, and correspondence between and related to the parties.
9. LTI’s Articles of Incorporation require that it be operated as a Section 509(a)(3) supporting organization. 10. LTI applied to the Internal Revenue Service (“IRS”) and was determined by the IRS to be a certain type of supporting organization. 11. The function of a supporting organization such as LTI is to provide support to a designated public charity. 12. LTI designated STC as the public charity it would support.
13. A supporting organization is one that is so connected to the supported organization that the supporting organization derives its own tax-exempt status from that relationship. 14. LTI’s preferential tax status stems from its relationship to STC.
15. The requirement in LTI’s Articles of Incorporation that it must be operated as a Section 509(a)(3) entity imposes several requirements on LTI including that: a. LTI must be responsive to the needs of its supported organization (STC); b. LTI must provide the supported organization (STC) with a significant voice; and c. LTI may not be subject to the direct or indirect control by a disqualified person, including a substantial contributor. d. LTI lacks the power to change its designated supported organization (STC) except for circumstances that are beyond LTI’s control (not present here); 16. In my opinion, the record in this case demonstrates that LTI is in violation of these requirements, including because it has purported to terminate STC’s status as a supported organization; it has not been responsive to STC; it has not provided STC with a significant voice in decisions relating to the lease renewal and STC’s status as a supported organization; and it appears to be under the control of a substantial contributor, namely, the Gunwyn/Lansburgh Development Corporation and its general partner, Gunwyn/Lansburgh Limited Partnership. This declaration is a high level summary of my expected testimony that is submitted to aid the Court’s consideration of STC’s emergency motion. I reserve the right to, and I intend to, supplement this statement with a more detailed report and/or testimony in accordance with the schedule established by the Court.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Roger Colinvaux Dated this 13th day of June, 2012
The Catholic University of America, Columbus School of Law, Washington, D.C. 20064 (202) 319-5146; Colinvaux@law.edu Professional Experience The Catholic University of America, Columbus School of Law, July 2008 – present. Associate Professor. Courses in Federal Income Taxation, Legislation, Property. US Congress, Joint Committee on Taxation, Washington, DC, Mar. 2001 – June 2008. Legislation Counsel. Lead Counsel for tax matters affecting nonprofit organizations, including legislation relating to tax-exempt status, charitable contributions, the unrelated business income tax, political activities, tax shelters involving nonprofits, private foundation excise taxes, and charitable trusts, among others. Played major role developing enacted legislation relating to charitable giving incentives and substantial reform in the nonprofit sector (e.g., Title 12 of the Pension Protection Act of 2006, Pub. L. No. 109-280, 120 Stat. 780). Georgetown University, Washington, DC, Spring Semester 2008. Adjunct Professor. Designed and co-taught course in the L.L.M. program on the Political and Lobbying Activities of Tax-Exempt Organizations. Arnold & Porter, Washington, DC, Oct. 1998 – Mar. 2001. Tax Associate. Counsel to PNC Bank in successful Court of Appeals decision, PNC Bancorp, Inc. v. Commissioner, 212 F.3d 822 (3d Cir. 2000), regarding the deductibility of certain business expenses; practiced before the IRS on various tax-related matters; provided legal advice to public charities, private foundations, labor unions, and individuals on a variety of tax-related issues. Judicial Clerkship Supreme Court of Indiana, Justice Theodore R. Boehm, Indianapolis, Indiana Publications The Political Speech of Charities in the Wake of Citizens United: In Defense of Prohibition, __ CASE WES. L. REV. __ (2012) (forthcoming). Testimony Before the House Committee on Ways & Means, Subcommittee on Oversight (May 16, 2012), 96 TAX NOTES 52 (2012). The Conservation Easement Tax Expenditure: In Search of Conservation Value, 37 COLUMBIA J. ENVTL. L. 1 (2012).
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Testimony Before the Senate Finance Committee, United States Senate, Tax Reform Options: Incentives for Charitable Giving (Oct. 18, 2011), available at 68 EXEMPT ORG. TAX REV. 536 (2011). Charity in the 21st Century: Trending Toward Decay, 11 FLORIDA TAX REV. 1 (2011). Regulation of Political Organizations and the Red Herring of Tax-Exempt Status, 59 NATL. TAX J. 531 (2006). Primary Author of Significant Government Publications, including: Joint Committee on Taxation, Historical Development and Present Law of the Federal Tax Exemption for Charities and Other Tax-Exempt Organizations (JCX-29-05), April 19, 2005. Joint Committee on Taxation, Options to Improve Tax Compliance and Reform Tax Expenditures (JCS-02-05), Part VIII, Jan. 27, 2005. What is Law? A Search for Legal Meaning and Good Judging Under a Textualist Lens, 72 IND. L.J. 1133 (1997) (student note). Hearing Testimony United States House of Representatives, Committee on Ways & Means, Subcommittee on Oversight, Presented oral testimony on Tax-Exempt Organizations (May 16, 2012) United State Senate, Finance Committee, Presented oral testimony on Tax Reform Options: Incentives for Charitable Giving (Oct. 18, 2011). Education Indiana University Maurer School of Law, Bloomington, Indiana. J.D., magna cum laude, Order of the Coif. Member of the Indiana Law Journal; Executive Articles Editor. Oxford University (Merton College), Oxford, England. M.Litt (Master of Letters) in Politics. Thesis: The Public-Private Distinction and Constitutional Policymaking (examining the evolving relationship between the public interest and private rights through analysis of 19th and 20th century U.S. Supreme Court opinions). Connecticut College, New London, Connecticut -- B.A.
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Appointments and Bar Memberships Member of the Board of Advisers, Tax Policy and Charities Project, Urban Institute and Tax Policy Center, September 2011 – present. Chair of the DC Bar, Section of Taxation, Exempt Organizations Committee, July 2008 – June 2011; Vice-Chair of same Committee from July 2005 – June 2008. Member of the Board of Advisers, New York University School of Law, National Center on Philanthropy and the Law, Fall 2008 – 2011. Member of the Board of Directors, Senate Employees Child Care Center, Jan. 2008 – Jan. 2010. Treasurer from Jan. 2009 – Jan. 2010. Admitted to the District of Columbia and the State of Illinois Bars, and the United State Court of Appeals for the Third Circuit. Recent Recognition The New York Times “Gift to MIT from Amar Bose Raises Tax Questions” (quoted Apr. 29, 2011). “Nonprofits Fear Losing Tax Benefit” (quoted Dec. 3, 2010). “The Face of Private-School Growth: Familiar Looking but Profit-Making” (quoted Sept. 22, 2010). “Nonprofit Advocate Carves Out a For-Profit Niche” (quoted June 18, 2010).
The Washington Post “Police Union Lobbyist has Influence in Gun Debate, Beyond” (quoted Dec. 15, 2010).
Forbes “Secret Sauce” (quoted on supporting organization structure, Feb. 27, 2012).
Dallas Morning News “Wildenthal’s Spending Short on Documentation, Long on Personal Interests” (quoted April 29, 2012).
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The Chronicle of Philanthropy “IRS Urged to Reduce Paperwork Burden on Charities” (quoted May 16, 2012). “Senate Hearing Produces Sharp Opinions About Future of Tax Breaks for Charitable Gifts” (quoted Oct. 18, 2011). “Nonprofits Prepare for Debate Over Proposed Change to Tax Incentives for Charitable Gifts” (quoted Feb. 20, 2011). “Charitable Deduction Under Scrutiny; Proposals to Trim the Federal Budget Take Aim at a Cornerstone of Giving” (quoted Nov. 28, 2010). “A Taxing Proposition” (quoted Mar. 12, 2009). “Foundations vs. Charities: Should Rules Be the Same?” (quoted Sept. 4, 2008). “Paying It Forward – and Back: Nonprofit leaders worry as Congress rethinks tax breaks for donors and other charity policies.” (quoted Sept. 4, 2008).
The Chronicle of Higher Education “Billionaires Urged to Unlock Their Vaults for Charity” (quoted July 11, 2010).
BNA, Daily Tax Report “Witnesses Ask House Subcommittee for Relief From Form 990 Information Requirements” (quoted May 17, 2012). “Grassley Seeks Estimate of Nonprofit Tax Exemption, Putting Organizations on Edge” (quoted March 14, 2011). “Tax Status for Quasi-Charitable, For-Profits May Be Needed, Senate Finance Aide Says” (quoted April 19, 2010). “Tax Technical Corrections Legislation on Fast Track After House Introduction” (quoted Dec. 3, 2009). “Proposal to Cap Charitable Contribution Deductions Not Best Solution, Grassley Says” (quoted Mar. 11, 2009). “IRS Eyeing Revision of Penalty Regime Following Debut of Redesigned Form 990” (quoted Oct. 16, 2008).
EO Tax Today (a publication of Tax Analysts) “Exempt Organization Reps Generally Pleased with IRS Oversight” (quoted May 17, 2012) “Charitable Giving Incentives for Disaster Relief Could Be Trend, Aide Says” (quoted April 15, 2010). “Grassley Says It’s Time to Review Private Foundation Rules” (quoted Mar. 10, 2009).
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“Finance Committee Aide Says IRS Hospital Study Can Lead to Good Legislation” (quoted Feb. 29, 2009).
Tax Notes Magazine “Campaign Intervention by Charities Less Frequent This Year, Says Attorney” (quoted Oct. 30, 2008). “Many Exempt Organizations Can File Simpler Return for 2008, Official Says” (quoted Oct. 16, 2008). Selected Presentations District of Columbia Bar, Tax Section, “Conservation Easements with Karin Gross, Philip Tabas, and Roger Colinvaux” April 25, 2012 (Washington, DC). World Learning, Visitor Exchange Program, U.S. Dept. of State, “Volunteerism in the U.S.” April 10, 2012 (Washington, DC). American Bar Association, Tax Section, “Perspectives on Tax Reform: Charitable Contributions and the Non Profit Sector” Feb. 18, 2012 (San Diego, CA). Urban Institute, “Principles and Rationales Behind the Charitable Deduction and Alternatives” Oct. 7, 2011 (Washington, DC). Law and Society Association, “Citizens United and the Political Speech of Charities” June 2, 2011 (San Francisco, CA). Lincoln Institute of Land Policy, “The Role, Power, and Accountability of Non Profit Organizations in the American Legal System” Feb. 11, 2011 (Cambridge, MA). ARNOVA (Association for Research on Nonprofit Organizations and Voluntary Action), “Charity in the 21st Century: Trending Toward Decay” Nov. 19, 2010 (Washington, DC). New York University, National Center on Philanthropy and the Law, “Non Profit Speech in the 21st Century: Time for a Change? Charity Political Campaign Activity Restrictions: The Internal Revenue Code, the Constitution, and Beyond” Oct. 28, 2010 (New York). The Jewish Federations of North America, “Challenges to Charitable Sector” Oct. 6, 2010 (upcoming, Washington, DC). Law and Society Association, “The Pension Protection Act of 2006: The Beginning or
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the End of Reform of the Tax Status of Charitable Organizations” May 28, 2010 (Chicago, IL). Catholic University of America, Columbus School of Law at the National Press Club, “Philanthropy in the 21st Century: Should All Charities Be Created Equal?” April 14, 2010 (Washington, DC), available for viewing at HYPERLINK "http://video.law.edu/" http://video.law.edu/. Lincoln Institute of Land Policy, “What is the Value of Conservation Easements Under the Internal Revenue Code?” Mar. 19, 2010 (Cambridge, MA). The Urban Institute and the Hauser Center of Nonprofit Organizations at Harvard University, “Investments and Spending (By Charities): Federal (Tax) Enforcement and Legislation,” May 18, 2009 (Washington, DC). Seminar sponsored by Buchanan Ingersoll & Rooney, Nonprofits in a World of Change, Mar. 10, 2009 (Washington, DC). Roundtable Discussion About the Political Activities of Charities, sponsored by Paul Streckfus’ EO Tax Journal, Discussant, Oct. 29, 2008 (Washington, DC) (discussant). District of Columbia Bar, Tax Section, Exempt Organizations Committee, The New Form 990 (and Instructions), Oct. 15, 2008 (Washington, DC). Georgetown University Law Center, “Representing and Managing Tax-Exempt Organizations: Capitol Hill Update,” April 24, 2008 (Washington, DC). The Washington Non-Profit Legal & Tax Conference, Capitol Hill Report, Feb. 28, 2008 (Washington, DC). ALI-ABA Non-Profit Charitable Organizations Conference, Presentation Regarding Legislation Affecting Exempt Organizations, Nov. 29, 2007 (Washington, DC). District of Columbia Bar, Tax Section, Exempt Organizations Committee, Legislative Developments Regarding Tax-Exempt Organizations, November 28, 2007 (Washington, DC). American Bar Association, Section of Taxation, Exempt Organizations Committee, “Reexamining the Public Charity/Private Foundation Distinction,” May 11, 2007 (Washington, DC). American Bar Association, Section of Taxation, Exempt Organizations Committee, “News From the Hill,” May 11, 2007 (Washington, DC). Georgetown University Law Center, “Representing and Managing Tax-Exempt Organizations: Capitol Hill Update,” April 26, 2007 (Washington, DC).
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ALI-ABA Non-Profit Charitable Organizations Conference, Presentation Regarding Legislation Affecting Exempt Organizations, Nov. 30, 2006 (Washington, DC). Southeastern Council on Foundations, Presentation Regarding Donor Advised Fund, Supporting Organization, and Other Non-Profit Organization Reforms, Nov. 10, 2006 (Savannah, GA). District of Columbia Bar, Tax Section, Exempt Organizations Committee, Presentation Regarding Nonprofit-Related Legislation Enacted in the Pension Protection Act of 2006, Oct. 4, 2006 (Washington, DC). American Health Lawyers Association, “Tax Exemption, Community Benefit, and Congressional Scrutiny,” Sept. 19, 2006 (Washington, DC). National Tax Association, Annual Spring Symposium, “Political Speech by TaxExempt Organizations and the Red Herring of Tax Exempt Status,” May 18, 2006 (Washington, DC) (also organized the entire session on Charities and Tax Policy). American Bar Association, Section of Taxation, Exempt Organizations Committee, “News From the Hill,” May 5, 2006 (Washington, DC). Georgetown University Law Center, “Representing and Managing Tax-Exempt Organizations: Capitol Hill Update,” April 27, 2006 (Washington, DC). The Washington Non-Profit Legal & Tax Conference, Presentation Regarding NonProfit Reform Initiatives, Mar. 2, 2006 (Washington, DC). American Bar Association, Health Law Section, “Exempt-Status Issues of Health Care Organizations,” Feb. 24, 2006 (Tucson). American Health Lawyers Association, “Tax Issues for Healthcare Organizations,” Oct. 25, 2005 (Washington, DC). American Bar Association, Health Law Section, “Tax-Exempt Hospitals under the Microscope-Their Future in Light of Congressional and IRS Scrutiny,” Oct. 21, 2005 (Washington, DC). American Bar Association, Section of Taxation, Exempt Organizations Committee, “Conservation and Façade Easements: More than Meets the Eye?” September 16, 2005 (San Francisco, by phone from Washington, DC). American Bar Association, Section of Business Law, “What’s Happening to Nonprofits: The Changing Legal and Regulatory Landscape for Tax-Exempt Organizations – Non Profit Corporations,” Aug. 6, 2005 (Chicago).
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International Center for Not-for-Profit Law, Presentation Regarding U.S. Non-Profit Law to Government Delegation from Vietnam, June 16, 2005 (Washington, DC). American Bar Association, Forum on Affordable Housing and Community Development, “How Federal and State Responses to Tax Shelter and Insider Abuses Involving Nonprofit Tax-Exempt Organizations Will Affect Housing and Community Development,” May 27, 2005 (Washington, DC). American Society of Association Executives, “The State of Governance and Oversight for Nonprofit Organizations,” May 23, 2005 (Washington, DC). American Bar Association, Section of Taxation, Exempt Organizations Committee, “News From the Hill: Issues Raised by Recent and Pending Legislation Involving Exempt Organizations and Their Donors,” May 20, 2005 (Washington, DC). American Association of Debt Management Organizations, Legislative Developments Affecting Credit Counseling Organizations, May 5, 2005 (Miami, by phone from Washington, DC). International Center for Not-for-Profit Law, Presentation Regarding U.S. Non-Profit Law to Government Delegation from Russia, May 18, 2005 (Washington, DC). The Hauser Center for Nonprofit Organizations at Harvard University, “Reassessing the Whys and Wherefores of Government Regulation of Charities: Federal/State Preemption or Cooperation,” Dec. 3, 2004 (Cambridge, MA). Panels Organized and Moderated for the DC Bar, Tax Section Litigation Developments for Exempt Organizations, May 6, 2011. The New Schedule H for Hospitals: Issues and Hints of Future Guidance, Apr. The Year Ahead for Exempt Organizations, Feb. 23, 2011. Developments in Charitable Cross-Border Giving and Material Support, Dec. 8, 2010. Political Activities of Tax Exempt Organizations This Election Cycle, Sept. 29, 2010. Current Developments Relating to Colleges and Universities, May 26, 2010. Health Care Reform Legislation: What Does it Mean for Exempt Organizations? April 28, 2010. Governance of Charitable Organizations: How Does or Should Governance Factor Into Exempt Status, On Audit or Otherwise? Mar. 24, 2010.
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The Exempt Organization Update From the IRS, Dec. 9, 2009. The New Supporting Organization Regulations, Oct. 22, 2009. The Future of the Charitable Deduction in Light of the Obama Administration Proposal, May 27, 2009. Investment of Charitable Assets, UPMIFA and Ramifications of a Downturn, Mar. 25, 2009. Hospitals in the Spotlight, The IRS Hospital Report, Public and Private Views, Feb. 26, 2009. The IRS Guidance Plan for 2009, Dec. 17, 2008.
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