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89–557 2016

INTERNAL REVENUE SERVICE’S COLLEGES AND 

UNIVERSITIES COMPLIANCE PROJECT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON OVERSIGHT 

OF THE

COMMITTEE ON WAYS AND MEANS 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

MAY 8, 2013

Serial No. 113–OS4 

Printed for the use of the Committee on Ways and Means 

( 


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COMMITTEE ON WAYS AND MEANS 

DAVE CAMP, Michigan, Chairman 

SAM JOHNSON, Texas 

KEVIN BRADY, Texas 

PAUL RYAN, Wisconsin 

DEVIN NUNES, California 

PATRICK J. TIBERI, Ohio 

DAVID G. REICHERT, Washington 

CHARLES W. BOUSTANY, JR., Louisiana 

PETER J. ROSKAM, Illinois 

JIM GERLACH, Pennsylvania 

TOM PRICE, Georgia 

VERN BUCHANAN, Florida 

ADRIAN SMITH, Nebraska 

AARON SCHOCK, Illinois 

LYNN JENKINS, Kansas 

ERIK PAULSEN, Minnesota 

KENNY MARCHANT, Texas 

DIANE BLACK, Tennessee 

TOM REED, New York 

TODD YOUNG, Indiana 

MIKE KELLY, Pennsylvania 

TIM GRIFFIN, Arkansas 

JIM RENACCI, Ohio 

SANDER M. LEVIN, Michigan 

CHARLES B. RANGEL, New York 

JIM MCDERMOTT, Washington 

JOHN LEWIS, Georgia 

RICHARD E. NEAL, Massachusetts 

XAVIER BECERRA, California 

LLOYD DOGGETT, Texas 

MIKE THOMPSON, California 

JOHN B. LARSON, Connecticut 

EARL BLUMENAUER, Oregon 

RON KIND, Wisconsin 

BILL PASCRELL, JR., New Jersey 

JOSEPH CROWLEY, New York 

ALLYSON SCHWARTZ, Pennsylvania 

DANNY DAVIS, Illinois 

LINDA SA ́ NCHEZ, California 

JENNIFER M. SAFAVIAN, Staff Director and General Counsel 

JANICE MAYS, Minority Chief Counsel 

SUBCOMMITTEE ON OVERSIGHT 

CHARLES W. BOUSTANY, JR., Louisiana, Chairman 

DIANE BLACK, Tennessee 

LYNN JENKINS, Kansas 

KENNY MARCHANT, Texas 

TOM REED, New York 

ERIK PAULSEN, Minnesota 

MIKE KELLY, Pennsylvania 

JOHN LEWIS, Georgia 

JOSEPH CROWLEY, New York 

DANNY DAVIS, Illinois 

LINDA SA ́ NCHEZ, California 


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C O N T E N T S 

Page 

Advisory of May 8, 2013 announcing the hearing ................................................ 2 

WITNESS 

Ms. Lois Lerner, Director, Exempt Organizations Division, Internal Revenue 

Service, Testimony ............................................................................................... 42 

SUBMISSION FOR THE RECORD 

The Colleges and Universities Compliance Project Final Report ........................ 6 

MATERIAL SUBMITTED FOR THE RECORD 

Questions For The Record: 

Rep. Kenny Marchant ............................................................................................. 62 


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INTERNAL REVENUE SERVICE’S COLLEGES 

AND UNIVERSITIES COMPLIANCE PROJECT 

WEDNESDAY, MAY 8, 2013 

U.S. HOUSE OF REPRESENTATIVES, 

COMMITTEE ON WAYS AND MEANS, 

SUBCOMMITTEE ON OVERSIGHT, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 2:00 p.m., in room 

1100, Longworth House Office Building, the Honorable Charles 

Boustany [Chairman of the Subcommittee] presiding. 

[The advisory of the hearing follows:] 


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HEARING ADVISORY 

Boustany Announces Hearing on the Internal Revenue Service’s Colleges and Universities Compliance Project 

1100 Longworth House Office Building at 2:00 PM 

Washington, May 1, 2013 

Congressman Charles W. Boustany, Jr., M.D., (R–LA), Chairman of the Subcommittee on Oversight of the Committee on Ways and Means, today announced 

that the Subcommittee will hold a hearing on the Internal Revenue Service’s (‘‘IRS’’) 

Colleges and Universities Compliance Project Final Report. The hearing will take 

place on Wednesday, May 8, 2013, in Room 1100 of the Longworth House 

Office Building, beginning at 2:00 P.M. 

In view of the limited time available to hear witnesses, oral testimony at this 

hearing will be from invited witnesses only. However, any individual or organization 

not scheduled for an oral appearance may submit a written statement for consideration by the Subcommittee and for inclusion in the printed record of the hearing. 

A list of invited witnesses will follow. 

BACKGROUND: 

On April 25, 2013, the IRS released the final report of its Colleges and Universities Compliance Project. Based on responses to a questionnaire distributed to over 

400 tax-exempt colleges and universities, the IRS audited a sample of 34 colleges 

and universities identified as at risk for noncompliance. The report focused on compliance rates among colleges and universities in the following areas: (1) unrelated 

business income tax (‘‘UBIT’’), (2) executive compensation, and (3) employment tax 

issues. 

During its 4-year investigation, the IRS found significant noncompliance and 

underreporting of UBIT by over 90 percent of the audited schools, with income adjustments of about $90 million, and loss disallowances of over $170 million. The primary increases to UBIT were: disallowed expenses that were not connected to unrelated business activities, errors in computation or substantiation of losses, and the 

misclassification of unrelated activities as exempt. With the colleges and universities compliance project completed, the Subcommittee will review these audit findings, with an eye toward reform. In its review of executive compensation and employment tax issues, the IRS found colleges and universities setting compensation 

in the upper bounds of what is permissible, and all of its employment tax examinations resulted in adjustments. 

In announcing the hearing, Chairman Boustany said, ‘‘Given the importance of 

nonprofit colleges and universities, it is critical that the Subcommittee continue its review of this segment of the tax-exempt sector. The IRS’s colleges 

and universities compliance project suggests widespread noncompliance. 

The Subcommittee has an obligation to explore the root of these alarming 

findings on the audit of our Nation’s higher education providers. This hearing is an excellent opportunity to discuss the results of the compliance 

project and examine areas for improvement in oversight, with an eye toward comprehensive tax reform.’’ 

FOCUS OF THE HEARING: 

The hearing will focus on the findings of the IRS’s Colleges and Universities Compliance Project final report and will examine the causes for the widespread noncompliance found through the audit among tax-exempt colleges and universities. 


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DETAILS FOR SUBMISSION OF WRITTEN COMMENTS: 

Please Note: Any person(s) and/or organization(s) wishing to submit written comments for the hearing record must follow the appropriate link on the hearing page 

of the Committee website and complete the informational forms. From the Committee homepage, http://waysandmeans.house.gov, select ‘‘Hearings.’’ Select the hearing for which you would like to submit, and click on the link entitled, ‘‘Click here 

to provide a submission for the record.’’ Once you have followed the online instructions, submit all requested information. ATTACH your submission as a Word document, in compliance with the formatting requirements listed below, by the close 

of business on Wednesday, May 22, 2013. Finally, please note that due to the 

change in House mail policy, the U.S. Capitol Police will refuse sealed-package deliveries to all House Office Buildings. For questions, or if you encounter technical 

problems, please call (202) 225–3625 or (202) 225–5522. 

FORMATTING REQUIREMENTS: 

The Committee relies on electronic submissions for printing the official hearing 

record. As always, submissions will be included in the record according to the discretion of the Committee. The Committee will not alter the content of your submission, 

but we reserve the right to format it according to our guidelines. Any submission 

provided to the Committee by a witness, any supplementary materials submitted for 

the printed record, and any written comments in response to a request for written 

comments must conform to the guidelines listed below. Any submission or supplementary item not in compliance with these guidelines will not be printed, but will 

be maintained in the Committee files for review and use by the Committee. 

1. All submissions and supplementary materials must be provided in Word format and MUST 

NOT exceed a total of 10 pages, including attachments. Witnesses and submitters are advised 

that the Committee relies on electronic submissions for printing the official hearing record. 

2. Copies of whole documents submitted as exhibit material will not be accepted for printing. 

Instead, exhibit material should be referenced and quoted or paraphrased. All exhibit material 

not meeting these specifications will be maintained in the Committee files for review and use 

by the Committee. 

3. All submissions must include a list of all clients, persons and/or organizations on whose 

behalf the witness appears. A supplemental sheet must accompany each submission listing the 

name, company, address, telephone, and fax numbers of each witness. 

The Committee seeks to make its facilities accessible to persons with disabilities. 

If you are in need of special accommodations, please call 202–225–1721 or 202–226– 

3411 TTD/TTY in advance of the event (four business days notice is requested). 

Questions with regard to special accommodation needs in general (including availability of Committee materials in alternative formats) may be directed to the Committee as noted above. 

Note: All Committee advisories and news releases are available on the World 

Wide Web athttp://www.waysandmeans.house.gov

f 

/. 

Chairman BOUSTANY. This Subcommittee will come to order. 

Welcome to this hearing on the IRS’ final report on its Colleges and 

Universities Compliance Project. Over the last 2 decades, tax-exempt organizations have grown increasingly complex in their organizational structures and operations. This has made it more difficult for the IRS to conduct oversight of the sector. Lending to this 

complexity is the prevalence of profit-generating arms and investment activities within the tax-exempt organizations that may be 

subject to unrelated business income tax, or UBIT. 

Colleges and universities have been at the forefront of this trend 

toward greater complexity and the expansion of for-profit activities. 

These institutions have evolved to meet changing needs of students, but also have engaged in activities that are not ordinarily 


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associated with higher education’s tax-exempt function. Indeed, colleges and universities are a huge part of the tax-exempt sector. 

They generate a disproportionate level of tax-exempt revenue and 

hold a disproportionate quantity of tax-exempt assets. 

In number, colleges and universities represent just 0.5 percent of 

the tax-exempt sector but generate more than 11 percent of the 

revenue of charitable organizations, nearly $160 billion in annual 

revenue, and they hold over $150 billion in assets, which is more 

than 21 percent of the entire charitable sector’s assets. 

Given the significance of colleges and universities to the tax-exempt sector and the compliance difficulties that can be associated 

with such a large concentration of assets and revenue, the IRS 

launched the Colleges and Universities Compliance Project to review compliance in this area. The project began in 2008 with the 

IRS sending questionnaires to 400 randomly selected colleges and 

universities. The IRS then selected 34 of the 400 institutions for 

further examination based on questionnaire responses and Form 

990 reporting, which suggested possible noncompliance. 

The IRS’ examinations focused on under-reporting of UBIT, executive compensation, and employment taxes. The final report was 

issued on April 25th of this year. The IRS found almost universal 

noncompliance by some of the most sophisticated organizations in 

the tax-exempt sector. Noncompliance included widespread calculation errors and misreporting, 90 percent of the 34 institutions had 

their UBIT calculations adjusted upward for a total increase of 

around $90 million. The adjustments came from misreporting income from activities likes facility rentals, fitness centers, fitness 

center operation, golf courses as well as the improper classification 

of loss-generating activities as trade or businesses to offset for-profit income. 

While the UBIT rules like many tax rules may involve uncertainties, these findings may suggest deeper problems with the classification of for-profit activities by colleges and universities. Additionally, the report found that many institutions were unreasonably 

compensating top officials. In all, wage adjustments totaled around 

$36 million, with over $7 million in corresponding taxes and penalties. 

Today, we will hear testimony from Lois Lerner, Director of IRS’ 

Exempt Organizations Division. I look forward to hearing her views 

on this troubling report and look forward to taking a deeper look 

at the issues that have been raised. And so I want to thank our 

witness, Ms. Lerner, for being here with us today. And with that 

I will yield to the distinguished Ranking Member from Georgia, 

Mr. Lewis. 

Mr. LEWIS. Thank you, Mr. Chairman. Mr. Chairman, I want to 

thank you for holding this hearing. Today, we will review the results of an Internal Revenue Service project on colleges and universities. Colleges and universities play an important role in our society. They educate our young people and create our work force for 

the future. 

I am honored to have many colleges and universities in my district. We have wonderful institutions in metro Atlanta: Spelman, 

Morehouse, Georgia State University, Clark Atlanta University, 

Georgia Tech, and Emory University, to name just a few. They are 


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training the next generation of scientists, doctors, and engineers. 

They also provide many positive benefits to their local communities. 

I understand that many colleges are large and complex organizations. They have sports program that enrich their student body and 

raise revenue for the university. They may engage in activities 

such as advertising and operating golf courses, as the chairman 

stated, that may generate income subject to Federal tax. 

The range of their activities is diverse. I commend the Internal 

Revenue Service for taking a closer look at these organizations and 

groups. Projects like this are positive for both the agency and the 

universities. They are useful tools for educating each other. 

As we move toward tax reform, it is important that we all understand how colleges and universities operate and comply with the 

Federal tax laws. The agency report helps us begin this process. I 

look forward to hearing from our witness today. I am pleased that 

she is here to discuss what the agency learned from this report. 

Thank you. And like the chairman, I welcome you. 

And I yield back, Mr. Chairman. 

Chairman BOUSTANY. I thank the gentleman. 

Chairman BOUSTANY. And now it is my pleasure to introduce 

our witness today, Lois Lerner. Ms. Lerner is Director of the Exempt Organizations Division at the Internal Revenue Service and 

has been since 2006. Before her appointment, Ms. Lerner was Director of the Exempt Organizations Ruling and Agreements Division. 

Ms. Lerner, I want to thank you for joining us today, and you 

will have 5 minutes to give your oral testimony. The subcommittee 

has received your full written statement. That will be made part 

of the formal record. 

At this time I also ask unanimous consent to enter into the 

record the final report of the IRS’ Colleges and Universities Compliance Project. And without objection, it is so ordered. 

[The Colleges and Universities Compliance Project Final Report 

follows:] 


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Chairman BOUSTANY. Ms. Lerner, you are now recognized for 

5 minutes. Thank you. 

STATEMENT OF LOIS LERNER, DIRECTOR, EXEMPT 

ORGANIZATIONS DIVISION, INTERNAL REVENUE SERVICE 

Ms. LERNER. Thank you, Chairman Boustany, Ranking Member 

Lewis, and the Members of the subcommittee. I appreciate the opportunity to come and talk to you today. My name is Lois Lerner 

and I am the Director of Exempt Organizations at the Internal 

Revenue Service, and I am here today to discuss with you what we 

have learned in our recent examinations of tax-exempt colleges and 


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universities. These examinations were the final phase of a 

multiyear project that began in 2008 with the distribution of a 

wide-ranging questionnaire to 400 public and private colleges and 

universities. 

IRS has a very good relationship with the college and university 

sector, so we asked the National Association of College and University Business Officers for input in designing the questionnaire so 

that the recipients would understand the questions and we would 

get the best information. Responding to the questionnaire was voluntary and the response rate was about 97 percent. 

There were no big surprises in these responses. We saw a high 

level of good governance practices and policies, general use of the 

rebuttable presumption and executive compensation setting, and a 

significant amount of unrelated business activity. 

After reviewing the responses, along with the organizations’ 990s 

and 990–Ts, we selected 34 institutions for examination, concentrating on unrelated business income and executive compensation. 

We have completed almost all of these exams and released our 

final report last month. Please keep in mind that the schools examined don’t represent a statistical sample, so the results are not attributable to all colleges and universities; and also, because section 

6103 of the Internal Revenue Code prohibits disclosure of taxpayer 

information, the report and my comments are not taxpayer specific. 

So what did we find in these exams? Significant under-reporting 

of unrelated business taxable income. Taxable income from unrelated business activities was under-reported at 90 percent of the 

schools we examined and the amount totaled about $90 million. 

Amounts were under-reported for 30 different types of activities, 

but the majority of adjustments were made from only five, and 

those were fitness and recreation centers and sports camps, advertising, facility rental, arenas, and golf courses. In total, the IRS disallowed more than $170 million in losses in 

net operating losses, which could result in more than $60 million 

in tax liability for the impacted organizations. The most common 

reasons for these adjustments were that in about 70 percent of the 

schools they were reporting activities on their 990–T that didn’t 

qualify as a trade or business primarily because they generated 

continual losses over a protracted time period. 

Second, on 60 percent of the forms 990–T examined, colleges and 

universities offset income from unrelated business activities with 

expenses that were not directly connected to the activities. 

The third problem area involved net operating losses, which are 

losses reported in 1 year that can be used to offset income in other 

years. On more than a third of the returns examined, the schools 

had either improperly calculated the net operating losses or the 

losses were not substantiated. 

Fourth, nearly 40 percent of the schools incorrectly classified activities as exempt or otherwise not reportable on the 990–T, and 

after the IRS reclassified these, there was about $40 million in income coming from unrelated activities that was now subject to tax. 

We also looked at compensation. Section 4958 of the Internal 

Revenue Code requires that public charities, including private colleges and universities, pay no more than reasonable compensation 

to their officers, directors, trustees, and key employees. It also imVerDate Sep 11 2014 15:12 Jun 28, 2016 Jkt 089557 PO 00000 Frm 00047 Fmt 6633 Sfmt 6602 I:\WAYS\OUT\89557.XXX 89557

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poses a tax on covered individuals who receive unreasonable compensation and on the organizational managers who approved the 

compensation. An organization can shift the burden of proving unreasonable compensation to the IRS if it follows the rebuttable presumption process, and under that it must use an independent body 

to review and determine the amount of compensation, rely on appropriate comparability data, and contemporaneously document the 

process. 

Although we found that most of the colleges and universities use 

the rebuttable presumption process to set their compensation, at 

about 20 percent of the schools the comparability data was not appropriate, which means that those schools failed to establish a rebuttable presumption. 

Problems with the compensation data included data from supposedly comparable schools that were not similarly situated, compensation studies that didn’t specify the selection criteria for the 

supposedly comparable schools, compensation surveys that didn’t 

specify whether the compensation amounts they used were limited 

to salary only or included the total of other types of compensation 

as required by Section 4958. We also looked at the amounts of compensation paid to top management officials and other college and 

university employees, and that information is included in the report. 

Mr. Chairman, Ranking Member Lewis, let me thank the Subcommittee again for this opportunity to discuss the report, and I 

would be happy to answer any questions. 

Chairman BOUSTANY. Thank you, Ms. Lerner. 

[The prepared statement of Ms. Lerner follows:] 


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Chairman BOUSTANY. The final report notes that very few colleges and universities sought outside advice about the treatment of 

potentially unrelated business activities, and when they did, they 

frequently received incorrect advice. So I have a few questions regarding that. First, do you have any thoughts on why such a small 

number of these universities and colleges failed to seek outside advice? Are there any insights? 

Ms. LERNER. I really don’t know other than the fact that they 

are large organizations and oftentimes large organizations have inside resources. 


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Chairman BOUSTANY. Okay. Are you concerned about the high 

frequency of incorrect advice that colleges and universities did indeed receive? 

Ms. LERNER. I think it is very important to keep in mind that 

part of our project was to provide information to folks about what 

the rules are and how they play out. If we are seeing that high 

level of concern with regard to folks who are actually seeking information, that means we could probably do a better job of explaining 

the rules to them. 

Chairman BOUSTANY. Okay. Because, thirdly, colleges and universities and advisers were frequently wrong about the classification of activities, allocation of expenses related to activities, and it 

kind of suggests or indicates that the rules are not well understood 

or that the institutions, maybe they are taking advantage of ambiguities in the law or some combination of the two. Could you comment further? 

Ms. LERNER. Sure. I think in this area everything is very facts 

and circumstances. You have to look at all of the factors in a particular institution that is making that judgment. What we did not 

see was organizations that didn’t seem to have a thought-out reason for classifying things the way they classified them. But it is 

very factual related and there were disagreements between the IRS 

and the organizations, and I think by putting this report out and 

doing some other work around the issue, that we can probably benefit the college and university sector as well as the exempt sector 

in general. 

Chairman BOUSTANY. What are your next steps? 

Ms. LERNER. Well, these are very, very narrow exams. As I 

said, there are only 34, and they were selected because they appear 

to have some potential for noncompliance. So we have already 

started a second unrelated business income project. We are looking 

at organizations that are reporting unrelated business activity on 

their 990s but they are not filing a 990–T. We think that is problematic. That is going on this year and we are already developing 

our projects for next year, which will include, I think, a more expansive project that goes beyond a particular part of the sector to 

see if these same issues are apparent across the sector. 

Chairman BOUSTANY. Thank you. And we will look forward to 

following up with you on that as it evolves. 

It no secret that the Ways and Means Committee this year is 

looking at tax reform and looking to rewrite the Tax Code. There 

is a consensus that the Tax Code is too complicated for many taxpayers and what we need are real solutions for a broken Tax Code. 

This report contains some troubling details about tax-exempt organizations and how they report unrelated business income and determine executive compensation. 

If the Committee were to consider changes in these areas, does 

the report suggest that there are structural problems with the taxexempt sector or perhaps more targeted changes should be contemplated in the Code? 

Ms. LERNER. Again, I think that it is really important for us 

to get more information than just these 34 organizations, because 

they were selected because of potential noncompliant activity. I 

would like to gather more information more broadly to see where 


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the real issues are that could be addressed before changes were 

made. 

Chairman BOUSTANY. Do you have a timeframe on that? 

Ms. LERNER. The project that I mentioned, it is already ongoing, began in this fiscal year. With examinations, it is somewhat 

difficult. You can’t really predict when they will be completed. But 

we are trying to look for ways that we can provide information during projects rather than waiting until the end of the project. 

It is sometimes difficult because in the beginning of the project 

you might see an issue that doesn’t carry through and you don’t 

want to give a misimpression that, oh, my goodness, this is going 

on across the sector, when in fact it is not. But we will try to get 

information out to the public as quickly as we can. 

Chairman BOUSTANY. I thank you. 

Now I am pleased to yield to my friend, Mr. Lewis. 

Mr. LEWIS. Thank you very much, Mr. Chairman. 

Ms. Lerner, I want somehow in some way for you to clarify the 

report’s finding regarding unrelated business income tax and compensation. Maybe in your response to the chairman you covered 

this. The report notes that 34 colleges and universities were selected from a pool of 400 for examination. Were these colleges a 

valid sample of all colleges and universities? Are there any assumptions that can be made based on these examinations regarding the practice of all colleges and universities? 

Ms. LERNER. The questionnaire was a statistically valid sample, 

so that can be looked at as how colleges and universities in general 

act. With regard to the examinations, it was not a statistically 

valid sample, so the results really only apply to the 34 organizations that were examined. 

Mr. LEWIS. Do you think from this examination, from this 

study, that you learned something or came across something that 

would be helpful to the IRS in other nonprofit charitable groups 

when you investigate or conduct an examination? 

Ms. LERNER. Yeah, I think we did. The compensation piece is 

not our first crack at compensation. We have been looking at this 

for some time. There have been allegations of inappropriate compensation in the tax-exempt arena for quite some time. 

Our first study on this was across the board. It looked at small, 

large, medium-size organizations, as well as private foundations 

and public charities. We did not find rampant improper compensation, but we did see some areas that created issues for us, and so 

we have continued that view. 

And I think the compensation piece that we saw here with regard to the rebuttable presumption and the use of comparables is 

an important one. This is the first time we have actually looked beyond the fact that the organizations were using comparables to see 

whether the comparables were really, in fact, comparable. And 

when I speak to groups about this, what I caution the board Members and the executive directors about is, don’t just accept the report from a compensation consultant, you need to ask them questions about this, because it can be done correctly and obviously the 

organizations are trying to do it correctly. So that is one piece that 

I think would apply across the board. 


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Mr. LEWIS. Sometimes you read reports, news reports by way 

of radio or television where a college president, a university president has been paid a certain salary and maybe the football coach 

is being paid much more. Do you look at things like that? 

Ms. LERNER. We do, and we did look at it here when we gathered information about how people were being paid. But there are 

separate rules for individuals that fall under Section 4958 of the 

code than there are for other individuals. So Section 4958, where 

I talked about the rebuttable presumption of reasonableness, in a 

private charitable college under 501(c)(3), the pay for everyone has 

to be reasonable. The law requires that it be reasonable, that charitable dollars go for charitable purposes. 

How you get to the reasonable is by looking at other like-situated 

organizations, people who are in the same part of the country, who 

have the same level of responsibility, who did the same kinds of 

jobs with a similar size organization. You look at those, and if you 

can find comparable jobs, then you look at what those people are 

getting paid and that is the way that organizations do set the compensation. 

The rebuttable presumption process and the excise tax, however, 

do not apply; only applies for officers, directors, trustees, key employees, and their families. It does not apply for a sports coach or 

an investment manager. They would not fall under that. 

Mr. LEWIS. Suppose you have a board member of a college or 

university, a private college, a small college or university, and this 

particular board member goes out and raises millions of dollars, 

and they want a certain amount earmarked for a certain department, for a certain professor, or for the coach. How do you examine 

something like that? 

Ms. LERNER. I am sorry. Could you say it again? I missed part 

of the question. 

Mr. LEWIS. So, as a member of the board of trustees, okay, and 

this member maybe is head of a foundation and said we are going 

to make a grant to this department or to the sports arm of the university to compensate the coach, to compensate a particular head 

of a particular department. 

Ms. LERNER. There are totally separate rules for that. What I 

am looking at here is how do you determine the compensation for 

that trustee for what the trustee is doing as a trustee? There are 

lots of other rules about how organizations and other foundations 

can provide compensation for an employee of the university outside 

of the university context, but that wasn’t what we were looking at 

here. 

Mr. LEWIS. Thank you very much. 

Mr. Chairman, I yield back. 

Chairman BOUSTANY. Thank you. Ms. Jenkins. 

Ms. JENKINS. Thank you, Mr. Chairman. Thank you for holding 

this hearing. 

Ms. Lerner, thank you for being here. 

Your final report states that the IRS weighted the data contained 

in the interim report so that the findings could be extrapolated to 

give a sense of the characteristics, activities, and tax reporting of 

colleges and universities, both private and public, regardless of 

their size. Can you briefly describe how the information was 


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weighted, like what factors you took into consideration? And from 

the final report findings, is it possible to describe any trends in 

noncompliance? Does it depend on the college size, whether it is 

public, private, or some other variable? 

Ms. LERNER. Well, let me start with the last part of your question first. In terms of noncompliance, remember the questionnaire 

was not an examination. The questionnaire was asking them for information. Based on that information, when we went out initially 

with the questionnaire, we divided the colleges and universities 

into three groups, small, medium and large, depending upon their 

student size, because we thought they would probably look different. So we wanted to get information along those lines. 

Then when we got all of the information in, we had a conversation with the people in our office who do statistical analysis and 

research. I am not expert in that area. And what they said to us 

was: Very nice study and very nice information, but because of the 

way that you asked the questions and divided up the groups, you 

can’t say anything across the board, you can only talk about those 

groups. So the weighting was done by statisticians, whatever magic 

mumbo jumbo they do to do that, so that we could say overall the 

college and university sector looks like this in this particular area. 

We did not find a great difference when we did the weighting 

than we had seen in the small groups. So we did it because we 

thought it would be important to be able to make broad statements, but it really didn’t make a difference. 

Ms. JENKINS. Okay. And the final report also notes that with 

regard to the compensation data, weighting the results produced 

meaningful results at the entity level but not broken down to individuals. Can you just further explain what that means and what 

impact it should have on our understanding of the compensation 

section? 

Ms. LERNER. Well, first of all, when you look at an organization, you have to see what type of job they have. So if you are looking at 20 different jobs in the organization, we did not break it 

down to those 20 different jobs, but we looked at the organization 

as a whole and said, is this organization using the processes and 

providing reasonable compensation, what kinds of things are they 

looking at, and how are they going about this. That is what we 

meant by the entity level, the organization as a whole, not particular jobs within the organization. 

Ms. JENKINS. Okay. Thank you. 

Mr. Chairman, I yield back. 

Chairman BOUSTANY. Thank you. 

Mr. Davis, you are recognized for 5 minutes. 

Mr. DAVIS. Thank you very much, Mr. Chairman. 

And thank you, Ms. Lerner. 

Let me ask you, were there special characteristics of the 34 institutions that you used as your sample? 

Ms. LERNER. If you mean by that question did we look at them 

because we saw particular aspects in them, the answer is yes. 

When we looked at the responses to the questionnaires and we 

looked at their 990s and their 990–T’s, we were looking for organizations that were paying high levels of compensation, for example. 

We were also looking for organizations that appeared to have high 


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levels of unrelated business activity, because those were the two 

issues we wanted to focus on and we were looking for organizations 

that we thought might have those issues and might have some 

problems. That is why the 34 doesn’t represent a random sample 

of what the whole sector looks like. 

Mr. DAVIS. And so you really couldn’t project with any high degree of certainty that this really becomes a problem across the 

board with colleges and universities throughout the country. 

Ms. LERNER. That is correct. 

Mr. DAVIS. I was just thinking, I represent about 30 or so colleges and universities, and I am wondering if maybe some of them 

may not really understand that they have got to be in compliance 

with certain kinds of rules and regs—I admit that I have sat on 

the board of a couple and I sometimes wondered how we arrived 

at paying our chief executives. Are there guidelines and is there 

guidance for institutions to use? 

Ms. LERNER. The rebuttable presumption is probably the best 

guideline they can use because it lays out the process they need to 

use to set the compensation, and if they follow the process and the 

IRS comes in to question the compensation, the onus is on the IRS 

to prove that it is unreasonable rather than on the organization to 

prove that it is reasonable. 

There are other ways of showing that you are paying reasonable 

compensation, but I believe that most organizations try to use that 

presumption because it is very clear what they have to do, and if 

they do it correctly, they are pretty safe. 

Mr. DAVIS. When it came to endowments, your report notes that 

56 percent of total endowment spending was for scholarship 

awards, grants, and loans. Do you know about the rest or the other 

portion of the endowments, how they were spent? 

Ms. LERNER. I don’t have that information with me today, but 

I can go back and see if we can get that information to your staff. 

Mr. DAVIS. I would appreciate that. And let me ask you, when 

discussing the 56 percent of distributions for scholarships, awards, 

and grants, is there an average endowment distribution or an average amount—I guess I am thinking some institutions have these 

great endowments where they get help and others have very low 

endowments or they don’t really get much in the way of endowments. Is there an average across the board? 

Ms. LERNER. I think the other thing that is important to remember about the endowment information that is in the report is 

that we sent the questionnaire out in 2006. In 2008, when we had 

the economic downturn, I am guessing most of the information that 

we got in 2006 may have been impacted greatly by that. So there 

are some limitations to looking at that data, but we can provide 

your staff with what we have. 

Mr. DAVIS. All right. Thank you very much. 

Mr. Chairman, I yield back. 

Chairman BOUSTANY. I thank the gentleman. Mr. Marchant. 

Mr. MARCHANT. Thank you, Mr. Chairman. 

The report says that the IRS made over 180 adjustments to institutions’ unrelated taxable income due to misreporting of income 

and losses. The majority of the adjustments came from sources like 

advertising, facility rentals, golf courses, and arenas. What income 


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was being offset by losses from these operations is question one, 

and can you give us some specific examples of that? 

Ms. LERNER. Probably I can’t answer question one today because I don’t have it at the top of my head, but we would be happy 

to go back and try and get that information to you. Let me make 

sure I understand exactly what you were asking. Could you repeat 

it, please? 

Mr. MARCHANT. Well, what income was being offset by the 

losses? 

Ms. LERNER. It varied in the institutions. Let me go back. 

There were about 30 different types of unrelated activities across 

the institutions, and the reason that I mentioned the five that I did 

was because most of the issues that we saw were in those five. I 

think, though, that they were in those five because if you look at 

the questionnaire results, you will see that those were the five activities that the most organizations conducted anyway. So you had 

a much larger number of organizations doing these activities, so it 

wasn’t surprising that there would be issues there. 

With regard to what they would be offsetting, the unrelated business income rules allow a tax-exempt organization to conduct its 

exempt activity and it doesn’t have to pay any taxes on that. With 

regard to activities that are not related to its exempt purpose, so 

you have got a college and its exempt purpose is to train folks and 

to teach folks, so that is all related. If you have—— 

Mr. MARCHANT. Let’s say they have a golf course. 

Ms. LERNER. Right. Let’s take the golf course. The golf course 

can be related under the right circumstances, but it might be a 

mixed use. So if your students who are training for your golf team 

are using the golf course, that would be related to your educational 

mandate. If on the other hand you are allowing your students to 

use it and your faculty to use it, but you also allow memberships 

from outside individuals, the money that you get from those outside individuals to use it is unrelated to your educational responsibilities, and so, therefore, it becomes taxable. So in one organization, one type of activity, you could have both taxable and nontaxable activity and you can allocate your expenses among those. 

But let’s take the golf course. Let’s say you had a golf course that 

was making lots of money, which is not what we saw here, but if 

you had a golf course that was making lots of money and it was 

unrelated, you would owe taxes on that. But you also have a parking lot, which is also not related, but you are losing your shirt on 

that parking lot. You can offset the gains in the golf course with 

the losses from the parking lot. That is how you get to what you 

have to pay tax on. 

Mr. MARCHANT. In a consolidated statement. 

Ms. LERNER. In a consolidated way, yes. It is no different than 

a taxable business. Taxable business may do lots of different things 

and it has all this big pile of gain and it has a whole bunch of deductions and it applies the deductions against the gain and the bottom line is what you have to pay taxes on. 

Mr. MARCHANT. What role do outside auditors play in the function of auditing these consolidated statements? I mean, they have 

to have independent auditors that come in and audit the books. Do 


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the auditors certify the accuracy of the compliance of the tax return? 

Ms. LERNER. I don’t know the answer to that question. I would 

imagine that they certify to something, but I am not sure the accuracy is what they are certifying to. I am not the right person to answer the question. 

Mr. MARCHANT. So you have got big accounting firms, if these 

are big universities they have got undoubtedly a big accounting 

firm that has come in and audited their financial statements. And 

I serve as a trustee of a small university, so I rely pretty heavily, 

when I go to the meetings, on those audited statements. But this 

university has no outside entity, so I wouldn’t worry about it. But 

if I were a trustee of a big university, I would want the auditor to 

certify, to also certify that the university was compliant in its tax 

returns, and maybe some education at that level might help. 

Ms. LERNER. Thank you. 

Mr. MARCHANT. Thanks. 

Chairman BOUSTANY. I thank the gentleman. 

Mrs. Black, you are recognized. 

Mrs. BLACK. Thank you, Mr. Chairman. 

And thank you, Ms. Lerner. This is a very interesting report. I 

am interested in the chicken or the egg kind of thing here. What 

led you all to do these audits? Was it the questionnaire that you 

got back in conjunction with the 990s or did you have the 990s and 

you saw some things on there and sent questionnaires out? 

Ms. LERNER. It was the first. We do questionnaires a lot. Colleges and universities or other large organizations, we can’t do a 

lot of audits of them in a particular year, and even if we do and 

we learn something, it is difficult for us to share that with anyone 

because it is specifically taxpayer related. So we use the questionnaires to go out broadly to ask either a particular part of the sector 

about its activities, or if we have got a particular issue like compensation that crosses the sector, we will go out and ask questions 

about the issue. 

Then, to use our resources in the most efficient way, we use the 

answers to the questionnaires and the 990s, and in this case the 

990–T, to narrow down the field so that we can pick a much smaller number to audit and get more information on. 

Mrs. BLACK. Tell me, what is a 990–T? I am familiar with a 

990, but I am not familiar with a 990–T. 

Ms. LERNER. Very good question. The 990 is the annual return 

that any tax-exempt organization has to file. 

Mrs. BLACK. Right. 

Ms. LERNER. If one of these organizations has unrelated business income over $1,000, then they file a separate form, which is 

the 990–T. It is really an income tax form, which is unusual in the 

tax-exempt world. 

Mrs. BLACK. Right. Right. So given what you have seen here, 

whether it is just a lack of education or maybe someone in the department not being aware of how to do this properly, and what you 

have found in the university study, are you now going to use this 

in other sectors of nonprofits that have 990s as well? 

Ms. LERNER. Yes. I think it is very important to broaden this 

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empt organizations because this was a homogenous group. We 

want to look farther, and we are developing a project for our next 

year’s work plan that will do just that. 

Mrs. BLACK. I know these were only 34 universities. Obviously 

there are a whole lot more of those, of universities across this country that might be looked at. Are you drilling down any deeper now 

that you have seen certain things that are apparent, to go back and 

look at some of these other universities to see if they are—because 

I know you are saying that this is not statistically significant because of the way in which it was done. But are you trying to do 

anything to go back and look and say, let’s try to do something and 

really figure out whether this is pervasive across the industry, 

whether this is just misunderstandings or non-education or whatever? 

Ms. LERNER. I think that some of those organizations, other colleges and universities may be included in this larger study that I 

was talking about, which will look broadly across the sector. So we 

may be looking at more of them. 

Mrs. BLACK. Okay. 

Thank you. I yield back. 

Chairman BOUSTANY. Thank you. 

Mr. Crowley. 

Mr. CROWLEY. Thank you, Mr. Chairman. And I appreciate 

particularly Ms. Black’s statements in terms of what the focus of 

the investigation was and whether or not it will be broadened out 

beyond colleges and universities. Because I think it is laudable in 

terms of ensuring that folks under the status are actually abiding 

by the requirements of that status and not abusing that. So I welcome that. 

I want to thank you as well, Ms. Lerner, for the swift approval 

of the nonprofit status for the Empire State Relief Fund, a charitable nonprofit founded by Governor Cuomo in the aftermath of 

Hurricane Sandy. We appreciate the IRS’ quick action on that. 

I understand that after the tragedy some unscrupulous dealers 

would set up phony charities from time to time with the aim of personally enriching themselves, so it takes some time for the IRS to 

vet each charity. I suspect that Governor Cuomo passed the test for 

being expedited. I am pleased that you did expedite that request 

for the Empire State Relief Fund nonprofit status. 

Second, with respect to the study—and to somewhat follow up on 

Ms. Black’s line of questioning—you have done on colleges and universities, how many of these colleges and universities have law 

schools? Do you know? 

Ms. LERNER. I don’t know the answer to that question. 

Mr. CROWLEY. So you wouldn’t know if they had them, if they 

were accredited? So you don’t have that answer? 

Ms. LERNER. I do not know that. 

Mr. CROWLEY. It would be interesting to see if those that have 

law schools would know whether or not they themselves would 

know they are in violation of any of the provisions. But seriously, 

this investigation is notable for what you uncovered, and I think 

we are all disturbed by what you have discovered in terms of the 

abuse within college and university systems. 


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On that topic, Ms. Lerner, as the Director of the IRS Exempt Organizations Office, your office covers a wide range of areas outside, 

as Ms. Black was alluding to, the college and university systems, 

including business leagues and chambers of commerce. Is that correct? 

Ms. LERNER. That is correct. 

Mr. CROWLEY. My question is, if there is a large national umbrella business league that receives its income from collecting dues 

from its corporate Members, the dues paid by those corporate Members to the umbrella business league would generally be something 

the Member corporations could deduct on their corporate income 

taxes. Is that correct? 

Ms. LERNER. That is correct. 

Mr. CROWLEY. Now, if the business league used those deductions for political purposes, such as partisan campaign ads, those 

funds would no longer be deductible by the Membership corporations. Is that also correct? 

Ms. LERNER. That is right. 

Mr. CROWLEY. When was the last time the IRS looked into the 

actions of these large tax-exempt business chambers to ensure that 

they are not spending their Members’ dues on political activity? 

Ms. LERNER. Well, they are allowed to spend their Member 

dues on political activity, but they have a responsibility. The responsibility is either to notify the Members that they cannot deduct 

the entire amount of the dues, or if they want to take the obligation upon themselves, they can pay the tax for this nondeductible 

activity. So the law does provide for covering both of those aspects. 

Mr. CROWLEY. I appreciate that, but I am concerned that some 

of these business chambers are skirting Federal tax laws and putting their corporate Members and the American job creators in 

legal jeopardy with the IRS to push a certain partisan viewpoint 

that doesn’t reflect all the Members of their Membership or the 

American public. 

I would urge the IRS to undertake an investigation immediately 

into this sector to ensure that when corporations pay their dues to 

these chambers of commerce, that there is an accounting of the receipts of these business leagues to ensure that every dollar that 

corporate members give and deduct are not used for political purposes. 

And finally, in the summer of 2012 it was reported that the IRS 

was going to undertake a similar investigation into the one taken 

here on colleges and universities on political entities that fund political campaign ads that were taking donations anonymously and 

are tax exempt. These are the folks that put on hundreds of millions of dollars in campaign ads in 2012 elections, all with no accountability and with taxpayer subsidy. 

This hearing highlights certain compliance problems in the taxexempt sphere, and I hope the IRS aggressively looks into these political and business leagues to see if they are abusing the tax-exempt status. I don’t want to speak for the chairman or for the 

Ranking Member, but I know my constituents in Queens do not 

want their tax dollars being used to subsidize political campaigns. 

I suspect neither do any of the Members on this panel. 


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So, Ms. Lerner, if you could comment briefly on the status of the 

IRS investigation into these political not-for-profits, I would appreciate that as well. 

Ms. LERNER. Well, there was a questionnaire that began this 

discussion and there is also a questionnaire out there, you can look 

at it on our Web site right now, that is seeking information from 

section 501(c)(4), (5), and (6) organizations, and a big piece of that 

questionnaire relates to their political activities. So that is our beginning. 

Mr. CROWLEY. I appreciate that. Thank you. 

And thank you, Mr. Chairman. 

Chairman BOUSTANY. I appreciate the gentleman’s line of 

questioning, and this hearing was focused specifically on the report 

dealing with colleges and universities. But I know there is considerable interest on both sides of the aisle on this subcommittee to 

look at other areas of the tax-exempt sector, and it is my intent to 

do so as we go forward. But I certainly appreciate the gentleman’s 

line of questioning. 

Mr. Reed, you are recognized. 

Mr. REED. Thank you, Mr. Chairman. 

And thank you, Ms. Lerner, for being here today. I reviewed your 

report, and I am going to veer off a little bit into an issue because 

we have already covered a lot of issues in relationship to how that 

impacts IRS and things like that. But just so I can clearly understand the data that you compiled here when it comes to compensation of folks at these educational institutions, for the key employees 

and the officers, directors and trustees, what was the average salary you found for those individuals? 

Ms. LERNER. I am going to have to look in my book. 

Mr. REED. Please do. I have got it in front of me, but I want 

this on the record. 

Ms. LERNER. Are you talking about the questionnaire or in the 

exam? 

Mr. REED. The exam. At the conclusion of your reports, I am 

going to ask you some data questions, because the data is amazing 

to me. 

Ms. LERNER. Uh-huh. The compensation for top managerial— 

oh, I am sorry. I am looking at the wrong thing. 

Mr. REED. I believe it is on page 4, but I will let you. You may 

have it differently. 

Ms. LERNER. No, I am looking at something different. I apologize. I am looking at my notes, which are not going to match up 

with what you are talking about. 

So the average base salary for officers, directors, trustees, and 

key employees was $448,981, and the average total compensation 

was $561,135. 

Mr. REED. Okay. And then for the highly compensated nonODTKEs, non-key employees, officers, directors, for investment 

managers what was the average compensation you uncovered 

there? 

Ms. LERNER. It was $894,214. 

Mr. REED. Sports coaches? 

Ms. LERNER. $884,746. 


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Mr. REED. And then when you got into the actual faculties of 

these institutions, heads of the departments, what is the average 

compensation you found there? 

Ms. LERNER. Well, there were two different average compensations. It depended on whether the heads of the department were 

also medical doctors. 

Mr. REED. Medical doctors. 

Ms. LERNER. If they were not medical doctors it was $229,770, and if they were medical doctors it was $753,738. 

Mr. REED. And then the overall faculty level? 

Ms. LERNER. Again, there was a distinction between the medical doctor—— 

Mr. REED. I understand the distinction between the two. 

Ms. LERNER. Do you want both numbers? 

Mr. REED. Yeah, both numbers would be great. 

Ms. LERNER. So for the non-medical folks, it was $215,854, and 

for the medical folks it was $575,632. 

Mr. REED. And admin/managerial. 

Ms. LERNER. Non-medical doctors $381,745, and medical doctors $462,872. 

Mr. REED. See, the reason why I asked you to do that, because 

it is amazing to me, as a person who is a firm believer in education 

and a degree and empowering people to control their own lives to 

get out of poverty, and when I have lived and seen the data where 

college tuition costs, data I have seen, public sector educational institutions have gone up over the last 10 years 104 percent; private 

institutions, 60 percent. And we are dealing with an accessibility, 

affordability of college. When I see compensation levels like that, 

that jumps out at me as an area that needs to be explored. When you are talking about essentially $900,000 as the average in coaches and investment managers and $500,000 for the other 

folks, how in the world, given the increases of cost of college education in America, how do these institutions justify paying that 

level of salary? 

Ms. LERNER. The rules on salary are reasonableness and the 

rules on reasonableness are to compare the like positions to your 

position, and that is how they do it. 

Mr. REED. So if everybody raises the cost of the salary, if everybody increases the salary, and that is something that is going on 

in education and college institutions, from the IRS perspective that 

is reasonable. But from my perspective, as a person who still pays 

his law school debt every month, when I see salaries like that, that 

doesn’t appear to me to be reasonable. It may be reasonable to colleges and universities and their club, but from a student’s perspective that irritates me. 

And I know, Mr. Chairman, that is not the focus and the kind 

of scope of this hearing, but I think it is an issue that needs to be 

put out in the public domain, and students need to understand the 

level of compensation these institutions in America, who get positive treatment by the IRS, are paying their administrators, faculty, 

and managerial staff, as well as their key employees when it comes 

to officers, directors, trustees, and elsewhere. Thank you, Mr. 

Chairman. 

Chairman BOUSTANY. I thank the gentleman. 


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With that, I would like to thank Ms. Lerner for being here today 

and for offering some insights into the report. And there will be 

plenty more questions, I am sure, going forward as you continue 

to look at this area and other areas of the tax-exempt sector, so we 

look to further meetings down the line. But we appreciate your insights today on these important issues. 

With that, the Subcommittee stands adjourned. 

[Whereupon, at 2:55 p.m., the Subcommittee was adjourned.] 


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[Material Submitted for the Record] 

Questions For The Record 

Rep. Kenny Marchant 

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