California A.G.

Additional public comments on AB 1181

Capitol Building in Sacramento. Image courtesy of Adobe Stock.

There has been relatively little public discussion of California AB 1181. Here are a few articles I’ve been able to find. Previous public comments discussed here.

CharityWatch

CharityWatch publicly supported AB 1181 on 7/12/19:  CharityWatch Supports California’s Bill to Discourage Charities from Exaggerating Non-Cash Contributions. Comments in the article provide background on the issue.  CharityWatch has long opposed the valuation methodology in place for the sector, mentioning there is an overvaluation issue.

CharityWatch perceives the application of current accounting rules creates enough variability and inconsistency in reporting that they remove all GIK from their ratings calculations.

Here is a one sentence summary of the underlying issue from the article:

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Jim Ulvog

Proposed GIK legislation in California passes Senate Judiciary Committee

Capitol Building in Sacramento. Image courtesy of Adobe Stock.

AB 1181, which will require specific accounting treatment for GIKs when donors require the donation be used overseas, was approved by the Senate Judiciary Committee on a 7 to 1 vote, with 1 committee member not voting.

The bill was referred to the Senate Appropriations Committee. Mark Hrywna (@mhrywna) reports the committee will hold  hearings on August 12. The last day to approve bills is September 13, when the legislature adjourns for this session.

FAF and FASB input

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Jim Ulvog

Minor revisions to California AB 1181, with bill re-referred to Senate Judiciary Committee.

Image of editing courtesy of Adobe Stock.

On June 28, 2019, the Senate Judiciary Committee made some minor changes to AB 1181. In one sentence, the bill under consideration would require charities to recognize gifts in kind at the fair value in the location where the items will likely be distributed if the items have a geographic restriction.

Comment at the legislature’s website says:

From committee chair, with author’s amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on JUD.

I am not quite sure how to read that, but think it means the author made some changes, probably at the suggestion of the committee chair, the bill was technically put back to the committee after that change, the committee made additional changes and the bill was technically put back to the committee again.

All that to say there were minor changes to the proposed bill.

Based on the “compare versions” tab at the website, changes made at this point include:

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Jim Ulvog

FASB working group looking at GIK valuation issue

Committee meeting. Image courtesy of Adobe Stock.

Yesterday I watched a webcast from FASB providing an update on Private Company Council and Not-for-Profit organization accounting issues  By the way, there are a couple of nice accounting options in the PCC world that have been extended to the NFP world. (Yeah, yeah, pray for me since I sort of enjoy those kinds of discussions.)

One of the speakers mentioned FASB has formed a working group to look at the issue of valuation of GIK, especially donated pharmaceuticals.

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Jim Ulvog

What is the specific, focused target of California AB 1181?

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Update – Mark Hrywna (@mhrywna) tweeted on 6/17/19 the Senate Judiciary committee has scheduled a hearing on AB 1181 on 7/9/19.

After attending CalCPA’s Not-for-Profit Organization conference last week and talking to a small group of my CPA colleagues, I have two thoughts on regulatory attention currently focused on the valuation of donated medicine.  Let me provided two questions which will focus my comments:

  • What is the primary concern of the regulators?
  • What is the specific, focused target of California AB 1181?

Previous post discussed the first question.

As I mentioned in that post, I have long wanted to develop an extensive discussion on the main accounting issues found in the California AG’s three cease and desist orders along with several accounting issues raised in their January 2019 settlement and May 2019 litigation.

That full discussion would have ended up somewhere around 3 or 5 times longer than these two posts. I won’t have time in the foreseeable future to write such an extended discussion. This pair of posts, at over 2,600 words, will have to do.

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Jim Ulvog

What is the primary, core concern of the AG community over charity financial statements?

What, oh what could be the core issue for charity regulators in their recent enforcement efforts? Image courtesy of Adobe Stock.

After attending CalCPA’s Not-for-Profit Organization conference last week and talking to a number of my CPA colleagues, I have two thoughts. (Yeah, yeah, I obviously don’t think much if I only have two thoughts after a full day of great presentations.)

Let me offer two questions which provide a way to focus my thoughts:

  • What is the primary concern of the regulators?
  • What is the specific, focused target of California AB 1181?

I have long wanted to develop an extensive discussion on multiple accounting issues found in the California AG’s three cease and desist orders. I would also like to discuss the host of accounting and auditing issues that are explicit or implied in the January 2019 settlement and the May 2019 litigation. It would be fun for me and informative for readers of this blog to dive deep into the wide range of issues raised by the AG.

That discussion would have probably run something in the range of 6,000 or 10,000 words, or perhaps longer.

I have not had the time to go into that extensive detail and don’t anticipate having that much spare time in the near future.

Instead, I will describe in the next post what I perceive is the very precise, very specific target of AB 1181 from the California Assembly and in this post will describe my perception of the key concern for the regulators.

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Jim Ulvog

Update on the charity that settled in January 2019 with the California Attorney General

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Went browsing around the web last night and found the settlement agreement for the AG’s case against the Giving Children Hope charity. Yesterday’s post discussed that case at length.

The National Association of State Charity Officials has a reprint of the California AG’s press release.

Included in the article is a link to the signed Assurance of Voluntary Compliance., which was approved by a judge on January 22, 2019.

Following are a few of the highlights from the signed agreement. In particular, the agreement fills in some of the details I was wondering about.

Remember my previous comment that I could see no reason one particular board member was included in the case?  He was chair of the board from 2014 through 2016, according to paragraph 2. On the settlement agreement, he signed as chairman on behalf of the charity which agreed to dissolve itself.

The CPA cited in the case provided accounting services to GCH from January 2014 through June 2017 (para 2).

In paragraph 10a the AG asserts GCH had at least 25 transactions in which it had one of two controlled subsidiaries purchase medicine from a named wholesaler in the Netherlands for a “very minimal price” and then had the controlled charities donate the meds back to GCH.

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Jim Ulvog

California AG settlement with charity for valuation of GIK

What is the proper valuation of a pallet of medicine purchased on the international market? Image of pharmaceutical warehouse courtesy of Adobe Stock.

Back on January 29, 2019, the California Attorney General announced a settlement with a charity for financial reporting which was misleading because of the valuation of donated pharmaceuticals.

Although the settlement is four months old and thus counts as ‘old news’, it is worth discussing as an indication of the level of concern the AG has for valuing GIK.

The AG’s press release: Attorney General Becerra Announces $410,000 Settlement with Giving Children Hope, After the Charity Engaged in a Misleading Reporting Scheme.

The settlement consists of $400,000 from the charity and $10,000 from four named individuals.

A page on the charity’s website comments on the settlement: Giving Children Hope’s Settlement Resolution.

The charity says its insurance company agreed to pay the $400,000. The charity asserts the penalty was “not paid from donated dollars of program funds.” That would be a technically true statement because the insurance company would have cut the check and not the charity.

The charity also said there were “no fines or penalties levied against” the charity. On one hand I suppose that is correct because an agreement to pay four hundred thousand dollars is not the same as a fine or penalty. I don’t think that’s quite correct for two reasons. First, the AG doesn’t collect voluntary contributions; the payment was made as settlement of civil charges. Second, insurance companies don’t write checks out of the generosity of their heart; they settle the liability of their insureds.

I think most people looking at the situation would agree the charity was hit with a $400,000 penalty.

Individual penalties

The press release says four individuals will also pay $10,000 in total. It is not clear from the press release whether this is a joint and several liability or each person will be billed individually for $2,500.

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Jim Ulvog

Committee analysis of California AB 1181

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Update: The Senate rules committee assigned the bill to the Judiciary committee a few days ago, 5/22/19.

The Assembly Committee on Privacy and Consumer Protection prepared a seven page analysis of AB 1181. The proposed bill, which has since passed the Assembly, would change accounting for GIK when the donor says the donated materials may only be distributed overseas.

Financial reports filed with the California Attorney General and solicitations to citizens of California would have to comply with the new accounting.

The following will be a loooong read, but the analysis by the committee is helpful for understanding the bill. There is good background in the discussion.

I will quote the analysis and provide some comments along the way. I quote the material without permission because it is a public document.

Highlights include the AG describing a successful enforcement action in which a charity turned a $225,000 purchase of meds into a $34,900,000 donation. Also, a representative of the California Society of CPAs makes an invalid argument against the bill.

From the committee analysis:

2) Author’s statement: According to the author, “AB 1181 addresses reported practices by some charities that grossly inflate the value of their publicly reported revenue and program expense, especially with respect to in-kind donations of pharmaceutical drugs. Overvaluation of the gifts-in-kind leads to an inflated total revenue for the charity which makes the charity appear more successful and efficient to the public and potential donors. An inflated revenue, in turn, can serve as a basis to hide excessive fundraising and administrative costs because these expenses would now appear smaller in comparison to the inflated total revenue. Inflated reports may also increase the charity’s ranking by charity watchdogs. This type of accounting practice is manipulative, misleading, and inconsistent with state law that safeguards transparency, fair reporting, and ensure a level playing field for honest charities that report accurate data to the Attorney General’s Registry of Charitable Trusts.”

At an overall level, the statement above provides a survey of the regulator’s and author’s concern regarding overvaluation of GIKs.

In particular, notice the last comment saying charities without large volumes of donated materials are at a disadvantage when appealing for donations from consumers.

Back to the analysis:

3) Addresses longstanding concerns with overvaluation of gift-in-kind donations: Under California law, the AG oversees registered charities to ensure that funds received are properly managed and devoted to charitable programs. The office derives its authority from the Charitable Purposes Act, which was originally enacted in 1959. This law generally requires every person or entity that holds or solicits property for charitable purposes in California to file specified documents and information, including annual financial statements, with the AG. These reports are in turn used by the AG to investigate and litigate cases of charity fraud and mismanagement by trustees and directors of charities. This bill seeks to address longstanding concerns with charities overvaluing gift-in-kind donations, a type of charitable donation where goods and services are given instead of cash to buy needed goods or services.

As far back as 2012, Forbes reported on a multi-state effort to crack down on nonprofits who greatly exaggerate the value of donated goods to make themselves look more successful than they actually are.

“In theory, there’s nothing wrong with gift-in-kind itself. A donation to a worthy charity is a donation to a worthy charity. The problem comes largely with the valuation. Cash is easily valued at, well, the amount of cash. But freed of the precision that cash provides, some charities value donated goods at many times the market price. The overvaluation makes a charity seem larger and more popular than it is, and also increases–artificially–financial efficiency ratios that many donors look at.” (Barrett, Charity Regulators (Finally) Eye Overvaluation Of Donated Goods, Forbes (Nov. 8, 2012).)

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Jim Ulvog

Other discussion of A.B. 1181, which would change accounting for GIK limited for distribution outside U.S.

Image courtesy of Adobe Stock.

There has not been much visible discussion of California Assembly Bill #1181 (AB 1181). Here are the notable items I’ve seen.

Mark Hrywna reported on May 14, 2019 that the Bill to Recalculate GIK Value Advances In California. That is the only detailed article I’ve seen on the bill.

ECFA provides reaction from FASB and ECFA: California Bill Would Impose New Burdens on Nonprofits and Undermine National Accounting Standards.

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Jim Ulvog

Has time run out on cleaning up GIK valuation?

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Looks like the time to clean up the GIK valuation issue might be gone.

After reading about California AB 1181, I will guess you rather strongly dislike the proposed legislation that is rapidly making its way through the legislature. You probably have some serious heartburn about the bill.

In recent years, there has been major enforcement effort by:

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Jim Ulvog

Legislative effort in California to change accounting for Gifts in Kind – part 2

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Previous post mentioned the Assembly of the California legislature has passed Assembly Bill No. 1181 (A.B. 1181) which, if passed by the Senate, would require charities to use overseas valuations for donated items which are restricted by donors for distribution overseas.

Paraphrase of proposed changes

The wording is simple enough that readers of this blog can figure it out for themselves. I will summarize the changes anyway.

There are three main changes.

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Jim Ulvog

Legislative effort in California to change accounting for Gifts in Kind – part 1

Image courtesy of Adobe Stock.

Update – Mark Hrywna (@mhrywna) tweeted on 6/17/19 the Senate Judiciary committee has scheduled a hearing for A.B. 1181 on 7/9/19.

The Assembly of the California legislature has passed Assembly Bill No. 1181 (A.B. 1181) which, if passed by the Senate, would require charities to use overseas valuations for donated items which are restricted by donors for distribution overseas.

As discussed in a series of earlier posts, the Attorney General has lost the substantive issues on cease and desist orders against three charities in a hearing. The Administrative Law Judge in the case found the expert witnesses for the charities was more persuasive that the expert witness for the AG. Thus the ALJ indicate he will decide in favor of the charities’ interpretation of GAAP. I don’t think a written ruling has been issued yet.

Proposed changes in law

The current law with changes made by this legislation are as follows, with red strikeout showing the removed text and blue italic showing new text.

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Jim Ulvog

Background on appeal of California AG’s C&D order for GIK valuation: Quotes from 2018 audit risk alert – part 7

How do you value a pallet of those meds? Image courtesy of Adobe Stock.

Previous post gave background on the 2017 and 2018 nonprofit audit risk alerts from the AICPA. The timing and contents of the 2018 alert were discussed.  The small discussion of GIK in the 2017 risk alert was quoted.

This post continues with some comments on the 2018 edition and then a long quote from that document.

You might want to read the previous comments for background to this post. Also might want to get a fresh cup of coffee and maybe a snack. This will be a loooong post.

 

Not-for-Profit Entities Industry Developments – 2018 / Audit Risk Alert

The 2018 risk alert added extensive discussion of valuing GIK, with a particular focus on pharmaceuticals and even more so for those which have a donor imposed restriction on the use of asset.

Ponder for yourself how this discussion applies to an asset that is restricted for use by any party who gets subsequent possession of the asset at any point during the remainder of the asset’s life. Keep in mind, meds have to be destroyed at their expiration date.

Quite simply, for the meds under discussion the restriction on the asset lasts as long as the asset lasts, regardless of who has the asset.

Also ponder the materiality level of the valuation when my impression is the AG seems to be claiming there is something in the range of a 10:1 ratio of US prices to international prices. From the few examples provided by the AG in its complaint, I infer that ratio may apply to just about all donated GIK.

Think back to the days when millions of doses of mebendazole were being booked by so many charities.  Back then the ratio of US to international prices for that med was something in the range of 350:1 or even 500:1. (If you don’t believe me, take the $10+ inferred US price per pill which was routinely used to recognize income and divide by 3 cents or 2 cents or less per pill offered by multiple vendors in the international market. One charity was reportedly recognizing revenue at $15+ per pill.)

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Jim Ulvog

Background on appeal of California AG’s C&D order for GIK valuation: Quotes from 2017 audit risk alert – part 6

Where does one look to find a value for those medicines? Image courtesy of Adobe Stock.

In previous posts discussing the California AG’s cease and desist order against three charities, which you can read by clicking this tag, I have mentioned the 2018 audit risk alert from the AICPA. The Administrative Law Judge (ALJ) explicitly cited paragraph .56 as support for the charities’ position.

As mentioned previously, the discussion in paragraphs .53 through .57 was new in 2018. I can find no similar comments, or even reference to the issues, in the several years before.

Likewise, the discussion in the section title Challenges in Auditing GIK, found in paragraphs .172 through .181, was new in 2018. I cannot find any comparable comments in the 2017 or 2016 audit risk alert after browsing those documents and running multiple word searches.

The NFP audit risk alert is routinely published in the summer, with references to economic statistics such as GDP change, unemployment, and interest rates from the prior year fourth quarter. That means each year’s NFP risk alert is written and put into final form somewhere between late January (when 4th quarter stats start becoming available) and about April/May (allowing for editing and production time).

Update: On day after publishing this post, saw a twitter comment pointing to a webcast on May 1, 2019:  Not-for-Profit Entities: 2019 Audit Risk Alert. The webcast will update auditors on issues affecting their 2019 audits. This will be based on the 2019 edition of the risk alert. The 2019 edition is not yet available on the AICPA’s web site. I don’t know what their production cycle is, but the upcoming webcast suggests to me the document is nearing completion. It isn’t done, but getting close.

Here is a question for you to ponder for yourself:  Was the discussion in paragraphs .53 through .57 and .172 through .181 added to the 2018 NFP audit risk alert in response to the AG’s C&D order?

Let me spell out some of the things visible to me:

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Jim Ulvog