Can a Nonprofit Return a Donor’s Gift?

Two relatively recent news events have raised the issue of nonprofit organizations returning gifts to donors:

 

  • The mainstream media wanted to know if Penn State University should return donations to donors who ask for a refund or should Penn State stick to its longstanding policy of not returning gifts. Following the Jerry Sandusky child sex-abuse scandal, the University affirmed its no-refund policy in its official talking points.

 

  • The mainstream media also took notice of a lawsuit filed by country music star Garth Brooks against INTEGRIS Canadian Valley Regional Hospital. Brooks sought the return of a $500,000 contribution. The media wondered if the Hospital should have returned the donation before things ended up in court.

 

Since much has already been said about whether gifts should be returned upon a request by a donor, I want to focus on whether a nonprofit organization can legally return a donation.

I’m not a lawyer. So, I decided to contact one. I spoke with a high-ranking state official who specializes in the regulation of nonprofit organizations. The official requested anonymity since we were discussing hypothetical situations.

Under certain circumstances, nonprofit organizations can refund a donor’s contribution. However, under other circumstances, returning a donor’s gift could result in a review by state authorities. Whether or not a situation results in state review will depend on a given state’s regulations, the impact returning the gift would have on the nonprofit, and the size of the gift in question,.

Different states have different laws and regulations governing nonprofit organizations. However, most, if not all, state rules are vague on the point of charities returning gifts. What states do recognize is that when a donor gives money to a nonprofit organization, that money is no longer the donor’s once accepted by the charity. Instead, the money is, in effect, owned by the public interest. Because nonprofit organizations exist to benefit the public interest, regulators will be concerned that gifts are used to further the public interest. Returning a donor’s gift could be contrary to the public interest. That’s the issue for regulators.

For example, a donor may want his $1 million gift returned. However, at the time of the request, the nonprofit may have already spent the money on construction of a new building. It may no longer be holding the donor’s money. And, it may not have sufficient cash on-hand to provide a refund. Or, providing a refund may substantially hurt the organization’s financial health. In such a situation, state regulators might find that returning the gift could be counter to the public interest and might move to block a refund.

The smaller the gift in question, the less likely the refund situation is to attract the interest of state officials. For example, state regulators are very unlikely to get involved if a $50 donor wants her gift returned. On the other hand, they are more likely to take notice if a $1 million gift is at issue.

By contrast, nonprofit organizations are required to return a donor’s gift if the funds cannot be used according to the donor’s intent or if any significant provisions of a gift agreement are violated. The donor’s intent and/or the gift agreement are a contract governing the relationship between the donor and the organization. Nonprofit organizations are legally bound by such agreements.

To ensure that organizations do not run afoul of state authorities or donors, nonprofits should take the following measures:

 

  • The boards of nonprofit organizations should adopt a donation refund policy. Typically, the policy will not allow for refunds of donations. That’s the policy that’s been in place at Penn State. If the organization wants to allow refunds under special circumstances, those should be carefully spelled out in the policy.

 

  • Nonprofit organizations should use written gift agreements for all large contributions. The organization should adopt a policy about the use of gift agreements including when they must be used and what points must be covered in them. If a well-written gift agreement had been in place between Garth Brooks and INTEGRIS, it’s doubtful that the two would have ended up in court. However, without a solid gift agreement, INTEGRIS ended up in court and was ordered to return the $500,000 gift and pay an additional $500,000 in punitive damages.

 

  • Nonprofit organizations should subscribe to fundraising codes of ethics and should even adopt an institutional code of ethics. Adhering to the highest ethical standards and committing to honor donor intent will avoid many situations that could trigger a donor to request a refund. A gift agreement is one way to outline the donor’s intent. However, in the absence of a gift agreement, correspondence and notes may help document the donor’s intent. At the very least, the nature of the appeal itself provides an indication of donor intent. For example, a direct mail appeal that speaks of scholarship funding will generate donations from individuals who expect their gifts will be used for scholarships.

  

The only time nonprofit organizations are required to refund a donation is if the organization violates the terms of the gift. Otherwise, the decision about refunding is up to each individual nonprofit though state authorities may step in to protect the public interest.

The best thing all nonprofit organizations can do is minimize the circumstances that can lead a donor to request a refund. To mitigate the risk of a refund request, organizations should use gift agreements, honor donor intent, and adhere to the highest ethical standards.

That’s what Michael Rosen says… What do you say?

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44 Responses to “Can a Nonprofit Return a Donor’s Gift?”

  1. Michael, terrific post and great #fundraising savvy! Let policy, process, and ethics be your guide!

  2. This touches on a conversation I recall a few months ago which was “can a not-for-profit refuse a gift?”

    I think there are cases where the organisation absolutely should. For example, if someone wanted to give a property under the guidelines that it be used by the charity to fulfil their mission and it could not be sold, then if the charity cannot sustain that property they are essentially being given a debt.

    Similarly, if a gift comes with onerous restrictions, it can be a problem. However, I’ve not actually heard of someone refusing a gift. Seems that’s even rarer than people wanting one returned… but I thought it was an interesting consideration nonetheless.

    • Scroobious Pip, thank you for adding another dimension to the discussion. When I teach ethics seminars, I run a discussion exercise that explores whether or not a hospital should except or reject a particular gift. I believe there are definitely times when a charity should reject a gift. Ideally, a nonprofit organization will have a solid gift acceptance policy that will outline what gifts are or are not acceptable. For example, I once served on the board of an environmental nonprofit that decided to not accept gifts from a landfill operator. For starters, gifts that come from heinous sources (i.e.: child molestors, murderers, etc.), from sources that have a mission in opposition to the mission of the organization, from sources that put overly burdensome restrictions on the gift, or from sources that would require the nonprofit to engage in inappropriate behavior (i.e.: receiving stolen goods), should be rejected. Rejecting a gift can be difficult for a variety of reasons. But, sometimes, it is the right thing to do.

  3. Thank you for an informative discussion regarding the charity’s decision to refund. Looking towards the donor in this situation, I am curious as to the tax ramifications for the donor if a charitable donation is returned?

    Thanks,
    Margaret

    • Margaret, thank you for your question. Because I’m not a CPA or tax attorney, please take what I’m about to say with a grain of salt. If there are any tax pros out there who would like to comment on this, please feel free to do so. Ok, now that we have the disclaimer out of the way…

      If a donor makes a contribution in a given calendar year and that gift is returned in the same calendar year, there shouldn’t be an issue since no tax return with a charitable deduction has been filed. However, if a donor makes a contribution in one tax year, files a tax return claiming a charitable deduction, and then has the gift returned in a subsequent calendar year, the donor will need to file an ammended tax return.

      The nonprofit organization’s role in the matter is limited. The nonprofit returning a gift should simply point out that there may likely be tax consequences and should advise the donor to seek competent professional advice.

      • Michael,

        The one concern I have with the “do nothing” if it all occurs in the same calendar year is that the donor has already been given a receipt (if we’re doing our jobs properly). We have had 1-2 instances where donors requested their gifts back (associated with the “resignation” of a popular employee), and we told the donors that we would return their gifts BUT we would be sending a letter to the IRS advising that the charitable gift had been returned. Just something to consder.

      • Joe, thank you for your comment. While your practice of notifying the IRS of a returned gift is interesting, I’m concerned about the message that might inadvertently be sent to the (ex)donor. If the gift is made and returned in the same calendar year, it is the donor’s responsibility to handle the transactions properly. The organization is under no obligation to notify the IRS. So, by going out of your way to inform the IRS of the situation, you’re basically saying you do not trust the donor to behave properly. On the other hand, I do think the organization should document the gift return and point out the tax implications in a letter to the (ex)donor. Taking the added step of informing the IRS just doesn’t strike me as being donor-centered.

      • Michael,

        I fully agree that it is not very donor centered, but we also have an obligation to our organizations to handle gifts properly. We built our policy in part because of IRS rules regarding gifts in kind. IN those cases, if a donor makes a gift and we sign the 8283 form, if we sell the gift for less than the appraised value (with the specified time period) we are required to report the difference in the transaction vs. the claimed value to the IRS. We tell our donors up front about this and our policy is simply that we notify the IRS of any change in a gift transaction that could impact their charitable contribution. We simply felt this provided consistency in our dealings with change in gifts that could have tax implications.

        As something of an aside in the “donor centric” model, there is also the presumption of an “institution centric” namely that their gifts or their actions are provided to benefit the organization. So requests for returns (especially when the organization has fully complied with the terms of the gift) in large part fail to meet the true expectation of a gift.

        Perhaps the discussion should move to “what happens when the recipient organization can’t fulfill their commitment to a donor”? Example, a donor gives $1 million to help fund an addition to the Library, but 2 years go by and there have not been adequate dollars raised to build the addition and the plans are shelved. Absent a good donor agreement (which SHOULD have been in place), what do you do?

        Thanks for a great discussion of a topic we hope to never address, but it does happen.

      • Joe, thanks for elaborating on your previous comment. I understand your organization’s rationale. However, I still think it’s going above and beyond where reporting on individual giving (or non-giving?) is concerned. Nevertheless, I do like that you inform your donors on the organization’s policy in this regard.

        I’d like to respond to the library project scenario that you outlined. If a library raises some money for a project, but the project does not go forward because insufficient funds were raised, the library is ethically and legally obligated to take the following steps: The organization must go to the project donors, inform them that the project will not be moving forward, and ask the donors if their gifts can be used for another purpose or if the donors want their money back. If a donor does not approve of his/her gift being used for another purpose, they have a right to have their gift returned. Again, this is both an ethical AND legal requirement.

        Many years ago, I had a museum client that raised some money for a special project. The Executive Director decided, however, to spend the money on another project of greater interest to her. The development staff told her they’d have to get approval from the donors for their gifts to be used for the new project. The Executive Director refused to allow the development staff to do this for fear that some donors might indeed want their money back. The staff tried explaining that raising money for one purpose and then using it for another is fraud. The Executive Director was unmoved. The entire advancement staff then resigned. This isn’t a story with a happy ending, but it does illustrate the degree we must be willing to go to protect our own professional integrity.

  4. I have been saying this over and over again! Thank you.

    • S. James, thank you for your comment and for sticking to your guns. But, I’m curious. Why have you had to deliver the message “over and over”? Are the powers-that-be not listening? Sometimes, we have to deliver the message more than once in order for it to finally resonate. Hang-in there!

  5. It is one thing to be ordered to return a gift; it is something completely different when punitive damages are awarded as well. Where does the other $500,000 go? It seems to me that Brooks might get his legal fees covered, but the punitive award should go to the public interest somehow.

    • Dan, thank you for your comment and for raising an interesting question. While I don’t know for sure, I believe the punitive damage award goes to Garth Brooks. If that sends a message to INTEGRIS and other nonprofits, then I think the punitive award does serve the “public interest,” even if just indirectly. Also, Brooks has shared that his dream is to one day build a women’s health center, not operated by INTEGRIS. So, the award money and more may ultimately, directly serve the public interest.

  6. Thank you for the timely and informative posting. By definition, the relationship between the donor and the charity is probably tense if a return has been demanded by the donor. Due to the misunderstanding that has likely devolved into a formal demand for the gift’s return, continuing to keep the donor’s best interests in mind may be difficult.

    When considering the return of a gift by a charity, be sure not to ignore the potential tax consequences for the donor. Re-acquiring the gift will most likely require a reversal of any charitable deduction that was claimed by the donor. If the gift was of significant size, it will probably trigger an audit.

    I suggest that the charity establish a policy advising the donor to consider having the charity directly transfer the gift to another tax exempt charity rather than returning the gift to the donor.

    • Steve, thanks for commenting. I had to smile at your definition of the relationship between the donor who requests a returned gift and the nonprofit organization. You’re quite the diplomat! Earlier, I had mentioned that a charity should advise a donor of the tax consequences associated with a returned gift. I like the idea of adding your suggestion to that conversation. I applaud you for your donor-centered idea.

  7. Good article! It all seems to be such common sense – doing what the donor requested, having a paper trail, being ethical, etc. I’m also a big believer in the “Mack truck” theory – if I get hit by a Mack truck, I want there to be other people who know what’s going on, so I probably over-communicate! In so many cases, charities aren’t large enough to have development departments, so it’s particularly important for someone else to know what’s “developing”, particularly in the case of large gifts.

    • Gloria, thank you for commenting. I appreciate the kind words. I agree, it is largely common sense that we’re talking about. Unfortunately, common sense isn’t always, well, common. So, I’ll keep talking common sense until it becomes universal practice.

  8. Good job, Michael. I don’t know of any new analysis I could add to either the post or its subsequent comments. All the points are valid. I have worked in the non-profit community a long time and specifically here in Oklahoma City for the past 12 years. I would agree that the punitive damages part of the settlement certainly does serve a public interest. It makes the strong case of following donative intent and using gift agreements for major gifts.

    I think a big part of the lesson to be learned has to do with a manipulative fundraising technique gone bad. These few details may not have been reported more widely than just on our local news but, as reported here, at one point the hospital wanted to use his gift as a first step toward leveraging a much larger gift from him. They wanted a $15 million gift from him and offered to name the entire hospital for his mother, and not just the women’s center. In addition, Garth claimed that at the time they solicited him for the women’s center, they knew they were not ready to build it and that it would be years before they would be.

    So, did that initial plan become simply a way to open the door and then solicit him for an ask on a much grander scale? He refused that attempt, and things seemed to go downhill from there. Sometimes our best-laid plans for moves management are simply not best. While the development staff moves that process along, we do NOT control it — and here is living proof.

    Integris has a much larger presence in Oklahoma than just its new Canadian Valley (suburban) Hospital. Their foundation is doing damage control now to re-assure community partners. Meanwhile, I know of at least one very worthy organization who has, because of this, had a subsequent audience with Garth and offered to build a relationship that would honor his mother. Interesting.

    • John, thank you for your kind words and for providing your local insights. Moves Management is a fine strategy, at least as long as it is donor-centered. As you point out, things can get ugly when that is not the case. It will continue to be interesting to watch as this story continues to unfold. The verdict may be in, but the story continues to evolve.

  9. Mr. Rosen,

    I think this is implied in your post, but for example: if a non-profit does something not-in-accordance with the bylaws or constitution, does this meet the requirement for refunding a gift? That would seem to me as violating the terms of a gift.

    • Jesse, thank you for commenting. Without more information, I’m not quite sure how to answer your question. An organization that violates its bylaws, depending on the nature of the violation, can be in a great deal of trouble on a number of different levels. Some, though probably not all bylaw violations, could indeed be a violation of the terms of a gift. It’s just another reason, though certainly not the only reason, why organizations should not violate their bylaws.

  10. I’m late to the party, Michael, but I’m curious what you think Integris should have done. As I understand it from the facts relayed through the press, Brooks sent in a check for $500,000 without stipulation. Integris knew they had been discussing the stipulation. Is the correct move to refuse the gift unless/until Brooks signs a donor agreement or is the correct move to acknowledge to Brooks receipt of the unrestricted and anonymous gift and wait to see if he objects to the framing? We’ve had donors before who will send checks, but will not sign agreements, so I’m looking for a suggestion as we decide on policy.

    • Todd, better late than never. :-) Thank you for taking the time to comment. Unfortunately, I don’t have enough of the facts from the Brooks v. Integris case to be able to address that specific situation. However, I will respond to your question somewhat more generally.

      It is essential that organizations respect the donor’s intention. A gift agreement is one excellent way to serve the donor because such an agreement outlines everyone’s intentions and obligations. However, a gift agreement is not the only way to do this. By keeping good notes and providing relevant, confirming correspondence, a development professional can document the nature of a gift and the reason for it, including purpose and recognition.

      So, if you have a donor that does not want to sign a gift agreement, make sure you have been taking detailed notes along the way and be certain to send the donor a detailed letter confirming your understanding of their intention in making the gift and outlining the recognition they will receive. And, be sure to honor any verbal commitments you have made.

      In the Integris case, the Foundation should have honored its commitments to Brooks. Again, I don’t know the details, but the jury seems to have found that commitments were made but not honored. Integris did not need a gift agreement in place in order to do the honorable thing.

      In summary, do what you tell the donor you will do. Respect donor intent. Document the transaction, ideally by gift agreement and, if not, by detailed notes and correspondence.

  11. Michael:

    This post is very timely for our ministry. We were given $350,000 by a donor to purchase land to be developed for teen suicide prevention. We purchased the property and began looking for others who would contribute to this worthwhile ministry. The entire project was to run about $1,000,000 and, unfortunately, no other donations were secured.

    Our board is currently weighing the best and right way to proceed. We want to give the donor the land as she feels strongly about program, and vision, not always consistent with where we believe the project should go. She is a wonderful person but at this point we are not able to satisfy her new vision for the land.

    Obviously, we cannot give her the money as her donation along with the bulk of our finances have been spent on purchase, engineering, taxes, etc., etc.

    Any advice will be appreciated.

    • Jeff, thank you for sharing your challenging situation. You’ve outlined a complex situation that involves the mission of your ministry, those you serve, relationships with those involved in the ministry as well as the broader community, and your own personal integrity. There are a number of alternative courses of action your board can take. Without more information, it would be arrogant of me to offer specific advice. However, I would like to encourage you and your board to outline all of your possible options and then carefully evaluate each of those options before selecting a path. I’ll call you so that we can discuss this further.

  12. Hi Michael, et al!

    I’m interested in hearing your views on this:

    Does making a goodwill refund of an unrestricted donation obligate us to return the same amount to a funder when the donation was made during a matching funds campaign? We’re thinking, ethically, that at the very least we will need to notify the funder of the circumstances and let them make the decision.

    • Randy, thanks for raising a very interesting issue. With the limited information I have, I’d have to agree with you that the organization would need to, at the very least, notify the matching-gift donor. I would suggest notifying the matching-gift donor that a contribution has been returned along with an explanation of why. I’d also explain to the matching-gift donor that their support has been greatly appreciated and put to great use (assuming both are true). Then, I would ask if they want the return of the appropriate portion of their gift or if the organization may keep it. Regardless of what they say about the return of the money, they will appreciate your honesty. Good stewardship isn’t always easy or painless. But, it is always the best policy.

  13. Thank you! This has been an incredibly informative column and thread. I have a related question. Suppose we put out an appeal for a specific need…perhaps capital equipment that will cost $3,000. We then receive many small directed donations (individually from $25 to $250) that total $3,500. Are we to refund the extra $500? If so, how would we determine who should or shouldn’t receive them or should they be pro-rated?

    • Joe, thank you for your kind words. I’m glad you found my post helpful. I’ll answer your question in two ways:

      First, my suggestion is for you to avoid the problem. While I think it can be very effective to raise money for a specific project, program, or piece of equipment, the wording of such an appeal must be carefully crafted. If you tell prospective donors that the funds raised will go to purchase a particular piece of equipment “and to meet other urgent needs,” you would be able to keep the focus on the equipment need while leaving the option open to use the funds for other urgent needs. A variation on this theme would be to say something like “your support will go to our areas of greatest need including the purchase of…” The idea is to talk about the specific AND the general need. A number of years ago, the American Red Cross launched appeals to help with a particular natural disaster. The Red Cross appeal said something like “your support will help the victims of xyz disaster and other disasters.”

      Second, if an organization has not carefully crafted its appeal and, instead, has only asked for donations for a specific item, then receiving “extra” money becomes a problem. Taking your example, the first $3,000 collected would go toward the equipment. Donors who contributed the last $500, amounting to a surplus, should then be given the opportunity either to have their gift returned or grant their permission for the money to be used for something else; the choice belongs to the donor. Failure to provide this choice to donors is simply unethical and amounts to fraud. Again, it’s much easier to avoid the problem in the first place.

      I hope this has helped. If you’d like to discuss this further, please let me know.

  14. Your 2/2012 comment regarding the tax treatment of a refunded charitable contribution makes sense, however, what if the donation was made in a year that has passed the statute and is now closed? For example, a nonprofit was raising money to build a center and after 8 years, the project has not gained traction and the funds will be refunded since it was raised with the specific intention to build a structure. Each year, the taxpayer contributed $10K or more in anticipation of funding a full $100K beginning in 2005. If the taxpayer funded $80K as of today, the 2009 and prior years are closed. Do we report the entire $80K in 2013 or amend the open years and pick up the balance in 2013?

    • “Donor,” thank you for your question. Unfortunately, I’m not qualified to answer it for you. I’m a marketer/fundraiser. While I could guess at the answer, I’m afraid that answer would be of little or no practical value to anyone. For an accurate answer to your question, I recommend contacting a Certified Public Accountant and/or tax attorney. These folks can inform you of the legal options the organization has for handling the transaction in a way the minimizes pain for the donor. Of course, the donor will want/need to seek his/her own accounting and legal advice.

  15. Over the past 11 years, I have donated a lot of old Boy Scout memorabilia (valued at $25-30,000) to a non-profit Scout museum in PA. It closed about 4 years ago, but has plans to “someday” in the future to reopen. I fear that the reopening is years away, and I’m 76. I would like for the museum to return selected items (valued at about $15,000) to me which I donated so that I may donate them to another active Scout museum in IL. Is there any PA law that would prohibit them from returning my donated items? Thanks.

    • Ken, thank you for your question. I’m sorry to hear about the situation you described. I can understand your frustration and concern. Unfortunately, the predicament you detailed is complex. The resolution of matter will depend on a number of factors including: 1) the gift agreement between you and the museum, assuming there is one; 2) the status of the museum; 3) whether or not the museum has creditors; and 4) Pennsylvania law.

      As I am not a lawyer, I can’t give you a definitive opinion concerning Pennsylvania law. However, I will say that the property you donated is now the property of the museum. As such, it is an asset of the museum. That means that creditors might be in line ahead of you when it comes to being able to access the items. Also, it means that the museum, if it is going out of business, probably can donate the items to another similar institution. However, the museum most likely cannot simply return the items to you unless your gift agreement allows for such action. By the way, if the museum does give the items back to you, there would be a variety of tax consequences and, therefore, you would want to contact a smart accountant for advice.

      My suggestion is that you work with the museum to see if they will donate the items to the other museum. If they won’t, your options are very limited unless you have a gift agreement that spells out other options that you might have.

      I wish you the best and hope the situation resolves to your satisfaction.

  16. What about a church giving back gifted land? Are there not some kind of tax laws being broken by doing this? Any thoughts on this would be appreciated.

    • 08yodert, thank you for your inquiry. Before I address your question, I must point out that I’m not a lawyer and, therefore, I can’t speak to what federal, state, or local laws might come into play with the situation you’ve mentioned. Instead, I’ll respond more generally.

      It really does not matter whether the gift in question is cash, art, personal property, or real estate. The idea is that once is gift is made, the item belongs to the charity for the benefit of the public. Returning a gift, therefore, might not be allowed. If returning the gift is permitted, there would be tax consequences; an accountant or tax attorney can better address what exactly those consequences would be. However, it might not be something as simple as reversing the charitable deduction. The transaction might trigger gift or income tax consequences.

      The added layer of complexity involving your question is that the gift was made to a church not a 501(c)3 nonprofit organization. So, some of the rules governing nonprofits may or may not apply. For example, the gift was not made for the broader public benefit; therefore, the church might have more flexibility regarding the return of gift.

      As you can see, there are really two broad issues: 1) Can the church return the gift? and 2) What are the tax consequences for the donor?

      By the way, the church should be guided by the terms of the Gift Agreement. If no Gift Agreement exists, the church’s behavior should be dictated by any written documentation (i.e.: notes, letters, emails, etc.) and/or oral agreement with the donor. For example, if the church accepted the gift with the understanding it would build a senior center on the site and then the church later chose not to build the center, it would be obligated to either return the gift or secure the permission of the donor to use the real estate for another purpose.

      I hope I’ve been able to help a bit. For a more complete answer, please consult an accountant and/or attorney.

  17. If a past donor engages in behavior that puts it at odds with the nonprofit, can the nonprofit refund that donor’s prior donations (est. $5k total) of it’s own volition?

    • Patrick, thank you for your question. First, the amount of total giving by the individual is irrelevant to the issue of whether the charity could or should return the donations. Second, the real problem would be if the money received by the charity came from illegal activity. For example, if the charity learned, after the fact, that the donations were made with money earned through stock fraud, the charity probably could, and might even be required, to return the money. However, if the charity simply doesn’t like something the donor has done after the gift, then returning the gift is problematic for the reasons outlined in my post. For example, let’s assume an animal welfare charity receives donations from someone. A year or two later, the donor is arrested for beating and starving his pet dog. While the donor has acted in a manner counter to the charity’s mission, I would suggest that the charity would be hard-pressed to justify returning the contributions.

      Charities are not in the business of returning donations. Rather than looking for reasons to return gifts, the orientation should be looking for reasons to keep gifts and use them for mission fulfillment. Remember, once a donation is received, the funds belong to the public for the use of achieving the charitable mission. The money no longer belongs to the donor and does not even really belong to the charity itself.

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