The business environment for higher education institutions is becoming increasingly more sophisticated and diverse. Education and academics, alone, are no longer sufficient to compete in the higher education market. Universities are adopting growth strategies that embrace alternative sources of revenue and activities.

In many cases, these new activities are spun-off to a related affiliate – a practice that allows the affiliate to operate without the governmental constraints of a public university and with a singularity of purpose and mission. Colleges and universities are forming affiliates to manage intellectual property and technology transfer, encourage business incubation, engage in economic development, conduct research activities, provide insurance, and conduct activities unrelated to their educational and academic missions. These activities can take a number of forms including through a tax-exempt subsidiary (e.g., a supporting organization), taxable subsidiary (which may be limited by potential constitutional constraints), joint venture, contractual affiliation, or investments in commercial organizations.
 
Attorneys from Ice Miller’s Exempt Organizations and Tax groups focus on the federal and state income, estate, and gift tax issues facing our higher education clients. We routinely advise higher education clients on the advantages and risks of forming and operating affiliates to conduct ancillary activities. Our attorneys understand the unique statutory, constitutional, financial and governance issues that colleges and universities face in this process.
 
Ice Miller's Exempt Organizations practice serves as outside general counsel to governmental and tax-exempt clients, from start-ups to mature and sophisticated entities. We understand that federal and state regulators, alumni, and the general public have demanded a greater degree of transparency and disclosure than has been the case in the past. In response to this trend, we are actively structuring proactive policies and procedures to adopt strong conflicts of interest policies and related disclosures (applicable to all parties, including board members, faculty and employees); incorporate the best practices in an evolving and complex regulatory environment; and avoid transactions or arrangements that could give rise to intermediate sanctions, private inurement, or private benefit.
 
Ice Miller’s attorneys actively advise a number of governmental and nonprofit entities, large and small, with regard to their corporate and governance issues. We regularly attend our client’s board meetings and serve as a legal and business resource to the board and executive team. We advise our clients on governing documents, committee charters and enabling resolutions, conflicts of interest policies, issues relating to board/staff relations, appropriate delegation and accountability, board and staff succession plans, director and officer indemnification and insurance, and other governance related matters. Our clients depend upon us to monitor industry trends, best practices, and legislative proposals.

Representative Clients

Representative Experience

Tax planning and structuring:
  • Advising public university officials regarding structures and strategies for forming a venture fund that includes private philanthropy together with donor co-investment;
  • Representing a public university in connection with the recent IRS College and University Compliance Project;
  • Creating a related tax-exempt entity to finance and construct campus facilities with non-state funds and lease them back to the public university;
  • Advising numerous universities and other tax-exempt entities with economic development and financing structures and strategies to redevelopment private properties surrounding their campus;
  • Advising a public university relating to forming and operating a captive insurance company to cover the risks of the university and its affiliates. Ice Miller provided a comprehensive analysis of the laws of various jurisdictions (e.g., offshore versus onshore considerations), and recommendations as to choice of entity (i.e., taxable versus tax-exempt captive);
  • Advising a public university regarding the formation of a nonprofit research foundation subsidiary; 
  • Creating a limited liability company to allow a university to engage in an educational activity with for-profit investors;
  • Structuring an agreement between a public university and a for-profit company regarding the operation of the university’s bookstore in the most tax effective manner;
  • Creating an internal checklist to allow university personnel to determine whether grants made to individuals should be treated as wages or bona fide scholarships/fellowships;
  • Structuring a public university's school of medicine in a spin-off its Kenyan medical exchange program. We formed a tax-exempt supporting organization to assume the operations of the program, and then engaged and supervised local counsel to provide advice on the Kenyan legal matters. In addition, we assisted Kenyan counsel in forming a Kenyan nongovernmental entity (NGO) to assume some aspects of the program in a manner that would qualify for exemption from Kenyan duties and tariffs; and
  • Identifying the advantages and risks associated with a private university's decision to spin off its business incubation program into a tax-exempt supporting organization. In addition, we provided advice regarding forming an angel fund to invest in the companies generated through the business incubation program.
Corporate and governance related issues:
  • Executive compensation issues, including the creation of infrastructure policies and procedures that are compliant with Code Section 4958 (intermediate sanctions); annual compliance and review of executive compensation contracts and arrangements, including the delivery of rebuttable presumption opinions; advice to the board of directors or Compensation Committee; negotiation and documentation of executive contracts; and Form 990 disclosures;
  • Advice and counsel regarding the client's corporate governance documents including its organizing statute, Certificate (or Articles) of Incorporation, Bylaws, Committee Charters, board resolutions, minutes and formal delegations of authority;
  • Drafting governance policies and documents that emphasize flexible decision-making and measurable standards of accountability and progress, including: Conflict of Interest, Intermediate Sanctions (i.e., Executive Compensation), Financial Authority, Code of Ethics (e.g., application of state ethics statutes), Gift Acceptance, Expense Reimbursement, Spousal Travel, Joint Venture, Electronic Participation (e.g., Open Meetings Act), Whistleblower, and Document Retention;
  • Evaluating their existing governance documents, policies and procedures to determine if the client is acting in conformance with its policies, if those policies achieve the strategic and operational priorities of the client, and if they reflect the best practices of the client's industry and peers; 
  • Advice and counsel regarding the application of sunshine laws, including the Public Information Act (PIA), Open Meetings Act (OMA), and formal/informal interactions with the Office of Attorney General;
  • Analyzing constitutional issues relating to the client's duties, powers and responsibilities;
  • Structuring nonprofit affiliates and related entities, including formation and registration, system governance, and related state and federal tax requirements;
  • Assessing board structure and the working relationship and responsibilities of the board of directors and board committees versus those of the executive or administrative staff; and
  • Implementing internal governance principles and procedures to supplement the organizational documents and provide direction to the board and executive staff.
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