Understanding And Planning For The Excise Tax On Executive Compensation Paid By Tax-Exempt Employers

by Seyfarth Shaw LLP
Contact
Introduction
 
In the past decade or so, the competition for executive talent in the tax-exempt sector of the United States economy has increased. Executives seldom begin and end their careers with the same organization and there is increased competition for executive talent with the for profit sector of the economy. As a consequence, compensation levels paid to executives of tax-exempt organizations have steadily increased while, at the same time, an increasing percentage of that compensation has been made contingent on the operational performance of the organization, including bonuses for the attainment of both mission-related and financial goals. 
 
As levels of compensation have escalated in the tax-exempt sector, so has the level of Congressional scrutiny. In December 2017, Congress, as part of broader tax legislation, enacted a new excise tax on annual compensation paid by all tax-exempt organizations in excess of $1 million. Bear in mind that the $1 million threshold is not adjusted for inflation, so more and more tax-exempt organizations will become subject to the excise tax as wages increase over time. 
 
From a tax policy perspective, the excise tax appears intended to create a sort of parity between tax-exempt organizations and publicly held corporations. Under section 162(m),1 publicly held corporations generally cannot deduct compensation in excess of $1 million per year with respect to certain employees. Effectively, this increases the tax owed by publicly held corporations by the product of those excess amounts and the corporate tax rate, currently 21%, the same rate as the excise tax now applied to tax-exempt organizations. 
 
The purpose of this article is to explain how the new excise tax is determined, and identify some planning options available to mitigate its effects on current and deferred compensation paid to highly-compensated employees. For example, and as further detailed below:
 
  • Certain state universities, colleges, and hospitals may wish to explore whether to give up their 501(c)(3) exemptions and, instead, rely on their status as a “political subdivision” or as “an integral part of a state or local government” in order to remain exempt from both federal income tax and this new excise tax.
  • Tax-exempt organizations may seek to utilize “split dollar loan arrangements,” an alternative to traditional unfunded deferred compensation arrangements, because the loans utilized to provide the employee with a deferred benefit do not constitute “remuneration” for purposes of the $1 million threshold. 
  • If portions of an employee’s compensation could appropriately be paid by an affiliate which is not a related organization for this purpose, such as an unrelated management company, tax-exempt organizations may consider bifurcating that compensation between those entities in order to reduce or avoid the excise tax.
  • For tax-exempt organizations that become subject to the excise tax, establishing the “rebuttable presumption of reasonableness” with respect to the payment of more than $1 million in annual “remuneration” will become even more important.
 
In General
 
Prior to the 2017 enactment of the new excise tax, tax-exempt organizations were not subject to taxation on any compensation or benefits paid to their executives, so as long as the amounts paid were considered reasonable in relation to the services provided to the organization. It was only in situations where some element or all of the compensation or benefits was unreasonable that the organization’s tax-exempt status could be in jeopardy because the excessive amount could result in a violation of the prohibition against the private inurement of net earnings. In addition, in the case of section 501(c)(3) charitable organizations and section 501(c)(4) social welfare organizations, the recipient of the unreasonable compensation and those who knowingly approved it could be subject to the excise taxes imposed by section 4958, the so-called “intermediate sanctions” provision.
 
Section 4960 now imposes an excise tax on tax-exempt organization executive compensation equal to 21 percent2 of: (i) “remuneration” (other than any excess parachute payment) in excess of $1 million paid to a “covered employee” by an “applicable tax-exempt organization” for a tax year, plus (ii) any “excess parachute payment” paid by an applicable tax-exempt organization to a covered employee other than an employee who is not “highly compensated.”3 The 21% excise tax is imposed on excess parachute payments even if the covered employee’s total remuneration does not exceed the $1 million threshold. Remuneration paid by a “related” entity is added to the calculation of total remuneration.
 
Tax-exempt organizations can expect to continue to have to pay market rates for recruiting and retention purposes, and still compete with for-profits for talent. The authors expect that the new provision may put added pressure on compensation determinations in any case where the excise tax will or could become payable (compensation in excess of $1 million or golden parachute severance arrangements). In those cases, it may be even more important to meet the requirements to establish the “rebuttable presumption of reasonableness” and procure opinions from compensation and tax counsel as to the reasonableness of the overall compensation package in each such case (with updates as appropriate).
 
Particularly in the case of compensation owed under employment agreements already in effect, the obligation to make these excise tax payments when paying reasonable compensation (or a reasonable separation payment pursuant to a “golden parachute” arrangement) should not amount to an automatic excess benefit transaction, private inurement or a violation of the limitation on private benefit.
 
Affected tax-exempt organizations should maintain and regularly update a roster of their covered employees and related entities, and track the total amount of remuneration being paid. If compensation could appropriately be paid by an affiliate which is not a related organization for this purpose, as further described below, tax-exempt organizations may wish to consider bifurcating a covered employee’s compensation to reduce or avoid the excise tax.
 
“Covered Employees”
 
For purposes of this provision, a “covered employee” means an employee (including any former employee) of an applicable tax-exempt organization if the employee is one of the five highest compensated employees of the organization for the taxable year or was a covered employee of the organization (or any predecessor) for any preceding taxable year beginning after December 31, 2016. This determination is made each taxable year, so the five “covered employees” may change from year to year. Importantly, once an employee becomes a “covered employee,” he or she will remain a covered employee for purposes of this provision. 
 
Consequently, an applicable tax-exempt organization may over time have significantly more than five covered employees whose compensation is subject to the excise tax, as the number of covered employees grows year-over-year.
 
Of critical importance is the fact that the determination of who is a covered entity is made on an organization-by-organization basis. This means that within a group of affiliated tax-exempt organizations, such as a health system comprised of a parent corporation and multiple operating subsidiaries, the affiliated group could have considerably more than five covered employees in any given tax year. 
 
“Applicable Tax-Exempt Organizations” - Which Tax-Exempt Organizations Are Subject to the Tax?
 
Virtually all tax-exempt organizations are subject to the excise tax because the term “applicable tax-exempt organization” is broadly defined to include all organizations exempt from taxation under section 501(a), entities that have income excluded from gross income under section 115(1), and section 527 political organizations.
 
Organizations Subject to the Tax
 
The excise tax applies to an “applicable tax-exempt organization.” That term is defined to mean any organization that for the year is exempt from taxation under section 501(a). Importantly, this definition encompasses all types of tax-exempt organizations, including hospitals, colleges, and universities exempt under section 501(c)(3), health maintenance organizations and other social welfare organizations exempt under section 501(c)(4), trade associations exempt under section 501(c)(6), and labor organizations and professional football, baseball and other types of sports leagues exempt under section 501(c)(5).
 
The excise tax also applies to farmers’ cooperatives described in section 521(b)(1) and political organizations described in section 527(e)(1), but these are not discussed in this article.
 
Public Hospitals, Colleges and Universities
 
Many public hospitals, colleges and universities are operated under State laws that authorize their formation and funding but do not grant them any governmental powers, such as the power of eminent domain, the power to tax or the police power. In the absence of any of these powers, these organizations can still be recognized as tax-exempt charitable organizations described in section 501(c)(3). Even if these types of organizations choose not to file an exemption application, these organizations can claim that their income is excluded from gross income under section 115(1) because they perform an essential governmental function (e.g., operate a hospital, college or university) and their income ultimately will accrue to the State or a political subdivision of the State upon their dissolution. In either case, these hospitals, colleges and universities will be subject to the excise tax on executive compensation in excess of $1 million.
 
On the other hand, many State laws authorize the formation and funding of hospitals, colleges and universities and grant the governmental powers including the power to use eminent domain to acquire property for their use, the power to tax (e.g., the ability to issue general obligation bonds that are funded by assessed real and personal property taxes), and limited police powers to establish their own police forces, such as a university’s campus police force. 
 
In general, these types of hospitals, colleges and universities are not subject to the excise tax on executive compensation in excess of $1 million unless they also apply and receive tax-exempt status as charitable organizations described in section 501(c)(3). As a result, these quasi-state entities may wish to consider the disadvantages of voluntarily terminating their 501(c)(3) status,4 accomplished by a letter to the IRS documenting that the organization is not otherwise subject to income tax, against the advantages of being exempt from this new excise tax (and, in the case of hospitals, perhaps as an added bonus, from section 501(r) and its extensive regulatory regime5).
 
“Remuneration” - What Types of Compensation Are Subject to the 21% Excise Tax, and What Types Are Not?
 
Wages in General
 
Remuneration subject to the excise tax means wages (as defined in section 3401(a)) and includes all cash and compensation in any medium other than cash, except for payments to a tax-qualified pension or profit-sharing plan or other amounts that are excludable from the employee’s gross income.6 It also includes amounts paid with respect to the employment of such employee by a person or governmental entity that is related to the applicable tax-exempt organization. Importantly, a health system with multiple tax-exempt subsidiaries will be exposed to the excise tax for both the parent corporation as well as each tax-exempt subsidiary, and the use of a common paymaster does not avoid the tax exposure.
 
An important issue is the time period over which wages are measured for purposes of determining whether the $1 million threshold is measured. This issue arises because tax-exempt organizations are required to have an annual accounting period that is either the calendar year ending on December 31st or a fiscal year that ends on the last day of a month other than December. These annual accounting periods are referred to as a taxpayer’s “taxable years.”7 Individuals who are employees of a tax-exempt organization, on the other hand, are required to use the calendar year as their annual accounting period.
 
The reporting of wages paid by a tax-exempt organization to its employees, including highly-compensated employees, is straight-forward if the organization uses the calendar year as its taxable year because Form W-2, Wage and Tax Statements, issued to employees are based on the employees’ calendar year as well and the organization files its annual Form 990, Return of Organization Exempt From Income Tax, based on the same calendar year. 
 
Confusion arises when the tax-exempt organization uses a fiscal year (such as a June 30 year-end), as do many colleges, universities and health care organizations. The organization is required to report compensation for current officers and key employees on its Form 990 in Part IX, Statement of Functional Expenses, Line 5, using the total compensation paid to such individuals for the organization’s fiscal year.8 However, for purposes of completing Part VII of the Form 990, Section A, and Schedule J, Compensation Information, Part II, the organization is required to use compensation that was paid during the calendar year that ends within the organization’s fiscal year and that was reported on the employees’ Forms W-2.  
 
Given that the statute specifically refers to remuneration paid “for the taxable year,” and it is the organization that is subject to the tax, rather than the employee, we believe that wages paid in the organization’s taxable year, and not those reflected on an employee’s Form W-2, should be used to determine whether a covered employee’s “remuneration” exceeded $1 million, subjecting the organization to a 21% excise tax on the excess.
 
Deferred amounts and earnings or losses in a nonqualified deferred compensation plan subject to section 457(f) are included in income at the time such amounts become vested or otherwise are no longer subject to a substantial risk of forfeiture and are treated as remuneration even if such amounts are not treated as wages. Consequently, the taxable year in which that happens should be the taxable year in which such amounts are added to other items treated as wages for purposes of determining whether the organization will be subject to the excise tax.
 
Non-Taxable Fringe Benefits
 
Section 3401(a) uses an expansive definition of “wages,” which is defined as “all remuneration for employment, including the cash value of all remuneration (including benefits) paid in any medium other than cash.” However, there are many statutory exclusions from income that are not subject to the excise tax because they are also excluded from the definition of wages, such as certain employer-provided meals and lodging (section 119) and non-taxable fringe benefits (section 132).
 
Expense Reimbursement and Allowance Arrangements
 
Another potential problem area arises in connection with expense reimbursement and allowance arrangements. If an expense reimbursement and allowance arrangement meets three requirements, namely, there is an appropriate business connection and proper substantiation, and the employee returns amounts in excess of expenses, the arrangement will qualify as an “accountable plan.” Amounts treated as paid under an accountable plan are excluded from an employee’s gross income and are not reported as wages or other compensation on the employee’s Form W-2. 
 
On the other hand, amounts treated as paid under a nonaccountable plan are included in the employee’s gross income and are reported as wages on the employee’s Form W-2. As a result, such amounts will also count toward remuneration subject to the excise tax if, when added to other compensation, the $1 million threshold is exceeded. 
 
The Surgeon Exception?
 
Remuneration does not include the portion of any remuneration paid to a licensed medical professional, including nurses and veterinarians, for the performance of their professional services.9 This exception would not apply to the portion of remuneration for the performance of administrative services, such as those of a physician serving as an executive or medical director of a health care provider. So, this is not an all or nothing exception.
 
The scope of this professional services exception remains uncertain. For example, many physicians today serve as CEOs or medical directors of health systems or health plans, and while functioning as a CEO may not require a medical degree per se, making medical necessity decisions does. Similarly, medical and veterinary professionals often provide services that depend on their professional expertise that do not involve direct patient or animal care, such as teaching and proctoring medical or veterinary students and residents, and conducting peer review and quality assurance activities as a member of a medical staff. It remains unclear whether compensation for these types of services will fall under the exception.
 
Payments to Independent Contractors and Risks of Reclassification
 
Many organizations attempt to bypass the requirement to withhold income, employment and Medicare taxes by classifying a service provider, such as a physician acting as a part-time medical director of a hospital who also has a private practice, as an independent contractor rather than as an employee. In many cases this is a completely legitimate position. However, it also is a position that the IRS routinely challenges on audit. As a consequence, tax-exempt organizations such as hospitals should carefully review their independent contractor-employee classifications, especially if the individual classified as an independent contractor is highly compensated as such.
 
Also, it should be noted that Congress has directed the IRS to prescribe regulations to prevent avoidance of the 21% excise tax through the performance of services other than as an employee or by providing compensation through a pass-through entity such as a partnership, limited liability company, or S corporation. It is likely that the IRS will take the position that the performance of services through a single-member limited liability company that is a disregarded entity for federal income tax purposes should be (i) treated as the performance of services by the sole member of the limited liability company directly to the tax-exempt organization and (ii) subject to the 21% excise tax if the compensation for such services exceeds $1 million.
 
Split Dollar Loan Arrangements
 
Increasingly, tax-exempt organizations are using split dollar loan arrangements as replacements for traditional non-qualified deferred compensation arrangements subject to section 457(f) or in addition to those arrangements. 
 
Basically, under a split dollar loan arrangement, the employer agrees to make loans to the executive to pay the premiums for a universal life insurance policy that is owned by the employee and that has a very high death benefit. A private placement policy also may be issued instead of a traditional policy issued by a traditional life insurance company. The employee is the owner of the policy and the employee agrees to a collateral assignment of the death benefit to the employer in an amount sufficient to secure the repayment of the loan and any accrued interest.
 
Upon the employee’s retirement, the employee is permitted to borrow accumulated cash value from the insurance company that issued the policy within agreed upon limits, again to assure that the employer ultimately will be repaid the amounts it loaned to the employee along with accrued interest.
 
Before the enactment of section 4960, these arrangements were attractive alternatives to section 457(f) plans for several reasons. From the employer’s standpoint, the employer provided a benefit that it ultimately would recover upon the employee’s death, unlike a section 457(f) plan where the amount is paid out fully to the employee upon vesting. From the employee’s standpoint, unlike a section 457(f) plan where the full amount payable to the employee is taxable when there no longer is a substantial risk of forfeiture regardless of whether the benefit is payable in a lump sum or over time, the policy loan is not taxable currently to the employee and typically is non-recourse.
 
With the enactment of the 21% excise tax in section 4960, split dollar arrangements are more attractive because policy loans are considered loans pursuant to section 787210 and, therefore, are not remuneration subject to the 21% excise tax.  
 
Related Persons or Governmental Entities
 
In recent years, it has become increasingly common for highly-compensated executives to receive compensation from multiple sources that, perhaps only in the aggregate, exceeds $1 million. For example, the compensation of a health system CEO may be assessed to each individual hospital but paid by the parent company acting as a common paymaster. Similarly, the compensation of a university president or football coach may be paid in part by the university and in part by a separate fund-raising or booster organization. In order to address these and similar types of situations, a broad definition aggregates all compensation paid by related entities to determine whether the $1 million threshold for taxation is met each year.
 
A person or governmental entity is treated as “related” to the applicable tax-exempt organization if such person or governmental entity: (i) controls, or is controlled by, the organization; (ii) is controlled by one or more persons that control the organization; (iii) is a supported organization (as defined in section 509(f)(3)) during the taxable year with respect to the organization; (iv) is a supporting organization described in section 509(a)(3) during the taxable year with respect to the organization; or (v) in the case of an organization that is a voluntary employees’ beneficiary association described in section 501(c)(9), establishes, maintains, or makes contributions to such voluntary employees’ beneficiary association.11
 
One or more persons (whether individuals or organizations) control a tax-exempt organization if they have the power to remove and replace (or to appoint, elect, or approve or veto the appointment or election of, if such power includes a continuing power to appoint, elect, or approve or veto the appointment or election of, periodically or in the event of vacancies) a majority of the tax-exempt organization’s directors or trustees, or a majority of the members who have the power to elect a majority of the tax-exempt organization’s directors or trustees.12 Such power can be exercised directly by a (parent) organization through one or more of the (parent) organization’s officers, directors, trustees, or agents, acting in their capacity as officers, directors, trustees, or agents of the (parent) organization.13 Also, a (parent) organization controls a (subsidiary) tax-exempt organization if a majority of the subsidiary’s directors or trustees are trustees, directors, officers, employees or agents of the parent.14
 
One or more persons (whether individuals or organizations) control a stock corporation if they own more than 50% of the stock (by voting power or value) of the corporation.15 
 
One or more persons control a partnership if they own more than 50% of the profits interests or capital interests in the partnership (including a limited liability company treated as a partnership or disregarded entity for federal tax purposes).16 A person also controls a partnership if the person is a managing partner or a managing member of a partnership or limited liability which has three or fewer managing partners or managing members (regardless of which partner or member has the most actual control), or if the person is a general partner in a limited partnership which has three or fewer general partners (regardless of which partner has the most actual control).17 For this purpose, a “managing partner” is a partner designated as such under the partnership agreement, or regularly engaged in the management of the partnership.
 
To the extent that any employee receives compensation from multiple tax-exempt organizations that are related, each organization is liable for its allocable portion of the excise tax imposed on the employee’s compensation. Specifically, the amount required to be paid by each such employer is calculated by multiplying the total excise tax amount by a percentage which is determined by dividing the amount of remuneration paid by such employer to the employee over the total remuneration paid by all employers to such employee.
 
Excess Parachute Payments
 
An excess parachute payment is an amount paid to a covered employee upon such employee’s separation from employment in an amount with a present value that equals or exceeds three times the employee’s base amount.18  Excluded from the definition of an excess parachute payment are payments under qualified plans, or any payment under or to an annuity contract described in section 403(b) or an eligible plan described in section 457(b).19 
 
Coordination with the Excise Tax on Excess Benefit Transactions
 
There is no coordination between the excise tax on compensation in section 4960 with the excise tax on unreasonable compensation imposed by section 4958. That is, the payment of the 21% excise tax does not insulate an organization from “intermediate sanctions” - excise taxes on “excess benefit transactions.” Likewise, we do not believe that there should or will be a presumption that the payment of compensation constitutes an “excess benefit transaction” merely because it triggers the section 4960 “tax on excess tax-exempt organization executive compensation.” 
 
Nonetheless, the importance of the establishment of the “rebuttable presumption of reasonableness” does appear to be amplified when the employer must pay a penalty in order to achieve such reasonable compensation. This simply means that tax-exempt organizations must still take steps to establish the reasonableness of all compensation and benefits as they have been doing for many years, with perhaps added vigilance when section 4960 excise taxes may become due. 
 
Effective Date
 
The 21% “tax on excess tax-exempt organization executive compensation” is effective for a tax-exempt employer’s tax years beginning after December 31, 2017. Thus, for tax-exempt organizations with fiscal year ends, the tax applies to compensation paid beginning with the first tax year beginning after December 31, 2017.
 
 
________________________________________________________________________________________________________________________________________
 
1 All “section” references are to the Internal Revenue Code of 1986, as amended.
2 21% is the current rate for the corporate income tax. If that rate is increased in the future, the rate imposed by section 4960 would increase as well.
3 For 2018, a “highly-compensated” employee is one who earns in excess of $120,000.
4 For example, a public hospital that is no longer described in section 501(c)(3) cannot use section 403(b) annuities to fund employee retirement benefits.
5 See Mancino, The Final Section 501(r) Regulations and Section 501(c)(3) Hospitals, 28:2 Taxation of Exempts (Sept./Oct. 2016).
6 IRC § 4960(c)(3)(A).
7 Section 441(b).
8 2017 Instructions for Form 990 Return of Organization Exempt From Income Tax.
9 Section 4960(c)(3)(B).  
10 Treas. Reg. § 1.7872-15.
11 Section 4960(c)(4). 
12See generally, the 2017 Schedule R Instructions for Form 990.
13Id.
14Id. 
15Id.
16Id.
17Id.
18 Section 4960(c)(5)(A).
19 Section 4960(c)(5)(C).

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Seyfarth Shaw LLP | Attorney Advertising

Written by:

Seyfarth Shaw LLP
Contact
more
less

Seyfarth Shaw LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.