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101 for 501s Workshop Series

Posted By Shari Jennings, Friday, September 16, 2016

As the Education and Programs Coordinator, one of the questions I get asked most frequently is whether or not we offer free trainings to those who would like to learn how to enhance an existing nonprofit organization.  Because of this FAQ, we have developed the 101 for 501s workshop series, sponsored by The Great Charity Challenge.   The workshops provide the essentials for moving nonprofit organizations to the next level of accountability, efficiency and service delivery.  In this series, we cover the following:

Board Governance, Fund Development, Volunteer Management, Human Resource Requirements, Media Relations, Management and Fiscal Controls.  The series begins September 15th and ends November 15th

After successfully completing the series, participants receive the following free benefits:

  • One year of access to Nonprofits First’s online self-evaluation and resource toolkit, the Pathway to Excellence (P2E) ($1,000 value)
  • One year of organizational membership with Nonprofits First ($125 - $850 value)

The following organizations have accepted the invitation to participate in the program:

Admirals Cove Foundation; Alliance for Eating Disorders; Bella’s Angels; Broadway Re-Investment Coalition; Community Greening; Dress for Success Palm Beaches; Friends of Foster Children of PBC, Inc.; Girls on the Run Palm Beach Inc.; Haitian Mission Evangelical Melchissedeck, Inc.; HOW Foundation; Hope for the Homeless; and Pandora’s Kids.

For more information, please contact Shari Jennings (sjennings@nonprofitsfirst.org).

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Why You Need a Firewall

Posted By Robert Montanez, Friday, September 16, 2016
Updated: Monday, September 12, 2016

When you leave your home or car for a period of time, do you lock your doors? Of course. Doing so gives you a sense of security. Your property won't be an easy mark for thieves.

The same is necessary for your computer; your internet connection leaves you vulnerable to hackers who want to access your financial and personal information. Some hackers may be after your high-speed connection so that they can send malicious viruses and worms, blackening your reputation. Other intruders have the power to destroy your operating system on a whim. How can you lock that computer door but still have the freedom to do your business online?

A solid firewall will help you stop intruders from accessing your system. You keep your internet link to the outside world but the outside world can't view you unless you want them to. With a firewall in place you will still have typical email access, but chat and other interactive programs will require you to take an extra step to grant access before you can use them. A firewall is powerful but unobtrusive, just like a deadbolt lock inside a door.

But unlike a single door to a home, the path to your computer data has two doorways. Some of your data is stored on a physical media storage device such as a hard drive, optical disk, thumb drive or some other form of media. The other method is your computer memory. An open door on either of these storage methods leaves your network and your data vulnerable.

Some of the most common methods to attack or view computer data include:

  • IP Spoofing - This form of attack occurs when someone outside your network spoofs (fools) your computer into recognizing the intruder as a trusted source--either a trusted internal source (by using an IP address that is within the range of IP addresses in your network) or a trusted external IP address that your system recognizes. This is like a stranger knocking on your door, claiming to be your long lost Uncle Joe. An IP address is like the computer's name, giving a computer a specific identity that other computers come to recognize.

    IP spoofing only works when a hacker learns your IP address. The hacker then modifies the packet headers on his communications to your computer. A packet header is present in any transfer of computer data and is similar to a routing number on a check. The header guides the packet of data on its journey just as a routing number guides a check.

  • Network Packet Sniffers - Windows NT sends network packets as unprotected clear text, inadvertently allowing anyone to pick packets up en route for a closer look. Even though some packet sniffers are legitimate (for network management) others are used to steal your information while in transit. This method is a hacker favorite because it's easier to pull off, harder to get caught.
  • Man-in-the-Middle Attacks - This type of an attack occurs when someone accesses information between two individuals without either one detecting the infiltrator's presence. If both parties are using a public-key system to send data, the man-in-the-middle can intercept the public key, use it to decipher the message, copy it, then recode the data again to continue sending it on its way.
  • Distribution of Sensitive Internal Information to External Sources - This form of an attack could involve a disgruntled employee or someone who has or once had access to sensitive corporate information. The individual could place the sensitive data on an external computer (such as an external FTP server or share a drive on a network) so others can have full access.
  • Password Attacks - Passwords are the most vulnerable to attack. Once someone has access to a user's password, the attackers will then have the key to personal information. There are several ways an attacker can steal passwords. The most common are:

      Password Guessing - This technique is often ineffective because it takes a long time to guess someone's password, even if the password is a common one. Attackers can either enter guesses manually or electronically.

      Brute-Force Logon - This technique is essentially the same as password guessing, however, the attacker tries to quickly gain access to a user's username and password by using guessing tools to automate the process.

      Password Cracking - This technique is more effective than the previous techniques. Password Cracking software obtains the password file in Windows through an elevated level of access, then uses a tool like PWDUMP to view the password data you've saved in a file.

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The Rising of the States in Nonprofit Oversight

Posted By Adriene Tynes, Thursday, September 15, 2016
Updated: Monday, September 12, 2016

In an extraordinary development, all fifty states, the District of Columbia, and the Federal Trade Commission filed a federal lawsuit in May 2015 against four charities and their operators, alleging that they had defrauded more than $187 million from donors.1 While the dollar amount was staggering, the most unusual aspect of the lawsuit was the incredible level of cooperation among state nonprofit regulators. This cooperation was evident not only in the bringing of the lawsuit but also in its successful settlement less than a year later, with the defendant charities and their principal officers surrendering substantial assets, agreeing to dissolution of the charities, and acquiescing to being banned from fundraising and management of charities and charitable assets in the future.2

This development highlights the growing sophistication and cooperation of state nonprofit regulators. And it is not an isolated incident. Building on seeds planted over the past several decades, state regulators are both individually and collectively increasing their oversight of nonprofits.

This trend is fortunate for those who care about oversight of nonprofits, because it comes at a time when the Internal Revenue Service’s efforts in this area are atrophying. Even before the recent controversy related to the handling of exemption applications filed by politically active nonprofits, the IRS faced a tight budget and a growing list of responsibilities, including significant rulemaking and administrative duties related to the Affordable Care Act, or Obamacare. These pressures, in turn, led to a growing backlog of applications for recognition of exemption, a decline in the already low audit rate for tax-exempt nonprofits, and limited new guidance for nonprofits seeking to comply with the complex federal tax rules applicable to them.3

The mess involving exemption applications filed with the IRS by Tea Party and other conservative-leaning groups worsened this situation in several ways, however. It accelerated the development of streamlined application procedures—including, but not limited to, the new Form 1023-EZ—that significantly reduce the level of IRS review for new organizations. It also gave Congress another reason to underfund the IRS, forced a wholesale change in the leadership of the IRS Exempt Organizations Division, and almost certainly made employees throughout that division wary of pursuing all but the most egregious violations of federal tax law. IRS examinations of annual information returns (primarily the Form 990 series) are now at an anemic level of less than four-tenths of a percent annually. This is at a time when the number of tax-exempt nonprofit organizations has grown to over one and a half million—not including churches and other houses of worship that are not required to seek such recognition from the IRS.

So, what have state nonprofit regulators been doing during this time of decline in IRS oversight? Individually, many of them have been working hard to review and improve their laws and procedures governing nonprofits, as well as increase efforts to reach the regulated community and those who advise that community.

Individual State Initiatives

In the wake of the Enron disgrace and other scandals that rocked the for-profit sector, California enacted the Nonprofit Integrity Act of 2004 to improve the governance procedures and enhance the filing requirements for charities, other nonprofits that hold funds for charitable purposes, and commercial fundraisers.4 Significant new requirements included in the act are a shortened period for registering with the attorney general (thirty days after the initial receipt of property); mandatory audited financial statements and detailed audit-committee requirements for charitable corporations with gross annual revenues of $2 million or more; mandatory board or board committee review of senior officer compensation; and numerous additional filing requirements for commercial fundraisers.

In 2013, New York enacted the Nonprofit Revitalization Act based on recommendations from Attorney General Eric T. Schneiderman’s Leadership Committee for Nonprofit Revitalization, made up of representatives from the New York nonprofit community.5 The act sought to relieve burdens on that community by reducing the number of categories for nonprofit corporations under New York law, simplifying certain formation procedures, and increasing revenue thresholds for certain auditing requirements. It also imposed enhanced corporate governance standards—including those relating to conflicts of interest, related party transactions, whistle-blowing, and financial audits—and gave the attorney general increased enforcement authority. More specifically, the act requires a written conflict of interest policy (with certain provisions for boards of all nonprofit corporations), mandates certain procedures for related party transactions, and requires a whistle-blower policy for nonprofit corporations with twenty or more employees and over $1 million in annual revenue. New York also recently announced a project to systematically review its registration and financial filing procedures for charities and fundraising professionals.6

These efforts are in addition to the increasing availability of state nonprofit filings through Internet-accessible databases, prominent announcements of investigations into alleged wrongdoing by nonprofits, and required annual reports detailing the high fundraising costs of certain nonprofits. On the latter point, examples include California’s commercial fundraisers reports, Massachusetts’s Report on Professional Solicitations for Charity, and New York’s Pennies for Charities report. In addition, state regulators have been working to enhance the other information available on their websites, providing an increasing number of plain-language guides on topics ranging from formation to fiduciary duties to dissolution. State regulators have also become regular presenters at many conferences focused on nonprofit legal issues, including meetings of the Exempt Organizations Committee of the American Bar Association, Section of Taxation; the Georgetown Law Representing and Managing Tax-Exempt Organizations conference; and the Loyola Law School Western Conference on Tax Exempt Organizations.

At least one state has taken a more innovative approach to combating what it perceives as unduly high fundraising expenses: An Oregon statute now disqualifies charities from eligibility to receive contributions that are tax deductible for purposes of Oregon’s income tax and corporate excise tax if program expenses fall below 30 percent of total annual functional expenses for the most recent three-year period. In December 2015, the Oregon Department of Justice announced the first three nonprofits to fall afoul of this rule; it remains to be seen whether any of them try to challenge their disqualification in court.7

States and localities have also become increasingly active in challenging the often very valuable property tax exemptions enjoyed by many nonprofits. These disputes have involved Princeton University; the Shrine of Our Lady of LaSalette, in Attleboro, Massachusetts; dozens of hospitals; and property owned by numerous other types of nonprofits.8 With no relief in sight for many state and local government budgets, these challenges show no signs of ebbing.

At the same time, state nonprofit regulators appear to have mostly avoided or backed away from getting involved with the regulation of political activity by nonprofits. While California and New York have been particularly active in this area, those states ultimately passed new election laws expanding disclosure of political activity by all types of entities, not just nonprofits, and disclosure of funding sources for such activity.9 By doing so, they avoided any need to modify the laws specifically covering nonprofits. In New York, the attorney general actually revoked previously issued proposed regulations that would have targeted for disclosure political activity by tax-exempt organizations, on the grounds that the election law changes made the proposed regulations largely redundant. This is almost certainly a positive development, given the IRS’s experience with regulating political activity by tax-exempt organizations, as it keeps this difficult and risky task in the hands of the state agencies that administer state election laws and thus are better suited to oversee such activity. That risk is illustrated by the ongoing litigation challenging California’s attempts at requiring tax-exempt nonprofits to submit to the state attorney general the list of donors they file with the IRS. The U.S. Court of Appeals for the Ninth Circuit has upheld on its face the attorney general’s ability to demand this information, but a federal district court has barred this demand with respect to one particular, politically active nonprofit: the Koch brothers–funded Americans for Prosperity.10

Collective State Efforts

State nonprofit regulators have also been increasing their communication and coordination across state lines. While such efforts can be traced back to occasional projects under the auspices of the National Association of Attorneys General (NAAG), they gained a more formal structure with the launch of the National Association of State Charity Officials (NASCO) in 1979. In particular, NASCO’s annual conference, which includes both public and regulator-only sessions, provides an ongoing opportunity for state regulators to meet each other, share their experiences, and learn about new developments. NASCO has also played a critical role in helping develop the Unified Registration Statement for nonprofits engaged in charitable solicitation, and the more recent Single Portal Initiative, which seeks to develop a one-stop Internet platform for charitable solicitation registration and reporting for all states that require such filings. NASCO has also begun to show a willingness to critique IRS oversight efforts—not just behind the scenes but also publicly, as shown by the concerns it recently raised about the new IRS Form 1023-EZ.11

The Single Portal Initiative is a good example of how long it can take for such collective efforts to bear fruit. The Initiative can be traced at least as far back as 2003, when the U.S. Department of Commerce provided initial funds for the project to GuideStar, which was working in partnership with NASCO.12 Almost thirteen years later, the Initiative published an official Request for Information, seeking input on the pilot website that NAAG and NASCO plan to launch by the end of 2016.

In 2006, the National State Attorneys General Program at Columbia Law School developed the Charities Regulation and Oversight Project directed by Program Executive Director and Senior Counsel Cindy Lott.13 The project provides an opportunity for state regulators to gather together to learn about various topics of common interest, including conservation easements, fraud in the charitable sector, and future trends in state regulation of charities. It also supports in-depth research into state regulation and enforcement of the charitable sector, in cooperation with the Urban Institute’s Center on Nonprofits and Philanthropy.14

Finally, NAAG recently formed its Charities Committee, which joins a dozen other NAAG special committees that focus on topics ranging from agriculture to federalism to substance abuse. This move is significant, because it institutionalizes attorney general–level attention to the oversight of charities. Consisting of eight attorneys general, the committee’s description highlights the breadth of its role:

The NAAG Charities Committee mission is to assist and enable attorneys general concerning charities registration and enforcement issues and matters by providing information, communication and support; to facilitate cooperation among the various areas of attorneys general offices that handle charities registration and enforcement through open dialogue and communication; to plan, organize and conduct training and annual seminars in coordination with the National Association for State Charities Officials and its assistant attorney general members for the exchange of ideas and information on matters relevant to charities registration and enforcement; and to promote the development of effective charities registration and enforcement programs and education for the protection of citizens and increasing awareness of our duties to our citizens.15

Ramifications for Nonprofits

So, what do these developments mean for nonprofits? There are several important takeaways:

  • The IRS is not the only sheriff in town. Especially for charities, state regulators have the authority and willingness to pursue wrongdoing. Like the IRS, they face budget pressures and competing priorities, but state regulators are showing an ability to manage these pressures through both innovation at the individual state level and coordination with other states and federal agencies at the national level. Forums such as NASCO, NAAG’s Charities Committee, and the Charities Regulation and Oversight Project will only continue to enhance state regulators’ ability to do more with their limited resources and to work together.
  • For compliant nonprofits, increased state innovation and cooperation is (mostly) good news. A primary goal of the ongoing state efforts is to reduce the regulatory burdens on nonprofits that are in good faith seeking to comply with applicable state laws. For example, New York’s Nonprofit Revitalization Act amended New York’s Not-for-Profit Corporation Law to raise revenue thresholds for certain audit requirements and to simplify the classification of nonprofit corporations. The Single Portal Initiative’s stated goal is to significantly reduce the administrative burden on nonprofits and professional fundraisers that solicit charitable contributions in multiple states, by providing a single online system for required registration and reporting. At the same time, however, these initiatives often impose additional governance requirements on all or some nonprofits, as exemplified by some of the recent changes to New York law and California’s Nonprofit Integrity Act of 2004.
  • For noncompliant nonprofits, there is less room to fly below the radar. As states update and revise their laws governing nonprofits and the procedures for enforcing those laws, fewer out-of-compliance nonprofits will be able to escape scrutiny. And increased communication between the states means less opportunity for out-of-compliance nonprofits to avoid oversight by simply ending activities in a given state or relocating to a different state. For example, one aspect of the Single Portal Initiative is to bring together IRS Form 990 data with state registration data, making it easier for state regulators to identify nonprofits that are operating in their jurisdictions without having properly registered or reported, as well as to spot fraudulent activity. These developments are good news for the nonprofit sector as a whole—they should reduce bad behavior, such as that highlighted in the FTC/50-State & DC Lawsuit, that damages the sector’s reputation. At the same time, however, less sophisticated and less well-resourced nonprofits that, while otherwise acting properly, have been able to ignore at least some state legal requirements with relative impunity, may no longer be able to do so—including with respect to both charitable solicitation and property tax exemption.

The bottom line is that nonprofits need to be aware that even as IRS enforcement of the federal requirements for tax-exempt organizations continues to be battered by limited resources and congressional criticism, the states have quietly laid the groundwork for more effective individual and collective oversight of nonprofits. That groundwork is starting to bear fruit, as illustrated by the recent multistate lawsuit, the renewed Single Portal Initiative, and the NAAG Charities Committee, as well as the addition of increasing governance obligations to the nonprofit laws of California and New York. Nonprofits, therefore, must be sure to treat compliance with their state legal obligations as seriously as compliance with their federal tax obligations, as well as making sure to keep track of the ongoing state law developments that could impact them in numerous ways.

 

Notes

  1. Federal Trade Commission, “FTC, All 50 States and D.C. Charge Four Cancer Charities With Bilking Over $187 Million from Consumers,” press release, May 19, 2015.
  2. Federal Trade Commission, “FTC, States Settle Claims Against Two Entities Claiming to Be Cancer Charities; Orders Require Entities to Be Dissolved and Ban Leader from Working for Non-Profits,” press release, March 30, 2016.
  3. Lloyd Hitoshi Mayer, “‘The Better Part of Valour Is Discretion’: Should the IRS Change or Surrender Its Oversight of Tax-Exempt Organizations?,” Columbia Journal of Tax Law7, no. 1 (2016): 80–122.
  4. Nonprofit Integrity Act of 2004: Summary of Key Provisions,” California Registry of Charitable Trusts, October 2004.
  5. The Nonprofit Revitalization Act’s New Annual Filing Requirements,” New York State Office of the Attorney General, accessed May 13, 2016.
  6. Charities Bureau’s Business Process Analysis,” New York State Office of the Attorney General, December 16, 2015.
  7. Disqualified Charities,” Oregon Department of Justice, accessed May 13, 2016.
  8. Evelyn Brody, “The 21st Century Fight Over Who Sets the Terms of the Charity Property Tax Exemption,” Exempt Organization Tax Review 77, no. 4 (April 2016); and Michael O’Loughlin, “Should Courts Get to Define Religion?,” Atlantic, May 3, 2016.
  9. Linda Sugin, “Politics, Disclosure, and State Law Solutions for 501(c)(4) Organizations,”Chicago-Kent Law Review 91, no. 3 (forthcoming), Fordham Law Legal Studies Research Paper No. 2768165.
  10. Josh Gerstein, “Koch-linked group scores legal victory over California AG,” Under the Radar (blog), Politico, April 21, 2016.
  11. Letter from Alissa Hecht Gardenswartz, president, National Association of State Charity Officials (NASCO), to Office of Information and Regulatory Affairs (April 30, 2014).
  12. GuideStar, “Federal Grant to GuideStar Funds Creation of National Charity Registry,” press release, October 14, 2003.
  13. Columbia Law School, “Charities Regulation and Oversight Project,” accessed May 13, 2016.
  14. Alex Daniels, “Nonprofits Proliferate but Not the Regulators, Says Report,” Chronicle of Philanthropy, October 5, 2015.
  15. National Association of Attorneys General, “Charities Committee,” accessed May 13, 2016.

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5 ways to retain a corporate partner

Posted By Charlotte Gill, Tuesday, September 13, 2016
Updated: Monday, September 12, 2016

With organizations focusing on long-term partnerships as opposed to annual or one-time sponsorships, it’s important that you work to retain those sponsors. It’s a given that your organization will deliver on promises to your corporate partner, but there are simple things you can do to ensure that you continue that partnership for years to come.

  1. Share results Businesses are results driven and want numbers about the success of your partnership. What they really want to know is how much they’ve helped raise and the tangible impact of their dollars on your mission.
  2. Publicize their efforts Organizations look to you to tell the world of their good deeds. Talk about them whenever possible through your newsletter, social channels and any media opportunity you have.
  3. Give recognition Your events are ideal opportunities to thank your corporate partner in front of many of your supporters at events. Also give awards both in front of their executives and employees, as well as in front of your board. Individual executives and employees who’ve made the partnership a success should be publicized in a press release.
  4. Present them with a photo of their team When I was with the American Cancer Society, We had one corporate partner which was vital to our success. They gave sponsorship dollars but more importantly their employees supported the event. To highlight this support, every year we hired a photographer and brought in a crane to take photos of the employee team at the event. We made sure that we included a banner for ACS. Then we presented them with a big copy of the photo that was nicely framed. These graced their lobby with a new one added each year. It helped cement the relationship and made it difficult for them to even think of changing the partnership.
  5. Keep your promises This is most important, don’t over promise when you’re trying to obtain a corporate partner and do over deliver on what you promise. All these moves are effective, but the most important aspect of building a relationship is trust. Trust is only established by doing what you said you would do.

In addition to helping maintain the relationship, these ideas can also help you grow the relationship for the future. After all, the more you show your appreciation for all a partner does, the more they may show appreciation with bigger programs and more sponsorship dollars in years to come.

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Financial Accounting Standards Board modifies not-for-profit accounting rules

Posted By Delferine Spooner, Monday, September 12, 2016

Financial Accounting Standards Board (FASB) issued a new accounting standard Thursday that is designed to help not-for-profits tell their story through their financial statements.

Not-for-profit financial statements have been prepared under FASB's current guidance since 1993. The new standard changes presentation and disclosure requirements with the intention of helping not-for-profits provide more relevant information about their resources—and the changes in those resources—to donors, grantors, creditors, and other financial statement users.

"While the current not-for-profit financial reporting model held up well for more than 20 years, stakeholders expressed concerns about the complexity, insufficient transparency, and limited usefulness of certain aspects of the model," FASB Chairman Russell Golden said in a news release. "The new guidance simplifies and improves the face of the financial statements and enhances the disclosures in the notes."

Accounting Standards Update No. 2016-14, Not-for-Profit Entities (Topic 958): Presentation of Financial Statements of Not-for-Profit Entities, decreases the number of net asset classes from three to two. The new classes will be net assets with donor restrictions and net assets without donor restrictions.

The standard also:

Requires reporting of the underwater amounts of donor-restricted endowment funds in net assets with donor restrictions and enhances disclosures about underwater endowments.
Continues to allow preparers to choose between the direct method and indirect method for presenting operating cash flows, eliminating the requirement for those who use the direct method to perform reconciliation with the indirect method.
Requires a not-for-profit to provide in the notes qualitative information on how it manages its liquid available resources and liquidity risks. Quantitative information that communicates the availability of a not-for-profit's financial assets at the balance sheet date to meet cash needs for general expenditures within one year is required to be presented on the face of the financial statement and/or in the notes.
Requires reporting of expenses by function and nature, as well as an analysis of expenses by both function and nature.
The new standard began taking shape after FASB formed its Not-for-Profit Advisory Committee (NAC) in 2009 in an effort to keep the board informed on not-for-profit perspectives in financial reporting. The NAC advised that certain areas of the not-for-profit financial reporting model could be improved.

The NAC recommended standard-setting action that would change how net assets are presented, provide better information for assessing liquidity of a not-for-profit, and require presentation of a measure of the results of operations. After obtaining extensive feedback, issuing an exposure draft in April 2015, and redeliberating, FASB decided to move forward with the change to the net asset classifications and the additional disclosures about liquidity.

FASB deferred the issue of an operating measure to what it calls Phase Two of the project, partly because of concerns over the measure that was proposed and partly because of a desire to use research that's part of a current FASB project to address performance reporting for for-profit entities.

FASB member Larry Smith said in an interview that the new standard presents the availability of funds for nonrestricted purposes better than the current financial model does.

"I think the liquidity presentation goes a long way in enabling users to see what is really available versus what assets are effectively earmarked for either something a donor has restricted or that the board has designated in terms of a special project," Smith said.

The standard contains targeted improvements rather than a wholesale change to the reporting model for not-for-profits and can be implemented without high costs, Smith said. He said that eliminating the previous three net asset categories (unrestricted, temporarily restricted, and permanently restricted) in favor of two categories will simplify information for financial statement users.

"We didn't see a great difference in something that's temporarily restricted versus permanently restricted," Smith said. "It's restricted. And we thought it was a lot easier for people to understand that notion."

The standard will take effect for annual financial statements issued for fiscal years beginning after Dec. 15, 2017, and for interim periods within fiscal years beginning after Dec. 15, 2018. Application to interim financial statements is permitted but not required in the initial year of application, and early application of the standard is permitted.

The AICPA Not-for-Profit Section has information about the standard and is developing resources, including a webcast on applying the new standard, that is scheduled for Sept. 28.

—Ken Tysiac (ktysiac@aicpa.org) is a JofA editorial director. Senior editor Neil Amato (namato@aicpa.org) contributed to this report.

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