Part 3 of 4

Deciding Factors for a Sound Merger

Picking the right leaders to decide vision, name, location, staffing—and more.

A church merger involves a complex legal strategy. But the presence of complexity should not steer leaders away from it. Bill Gates, addressing the 2007 graduating class at Harvard University, noted complexity—not apathy—represents the true barrier to lasting change. “To turn caring into action, we need to see a problem, see a solution, and see the impact,” he said. “But the complexity blocks all three steps.”

Similarly, church leaders who care about the future of their church, and who see emerging challenges confronting it—whether an aging membership, shifting demographics in the surrounding community, diminishing revenues, and/or dilapidating facilities—may see a merger as a fruitful solution with potential long-term and lasting impact.

That means they must embrace the complexity that comes with a merger. Since the window of opportunity for a merger inevitably closes, embracing the complexity requires taking action. And taking action means the right leaders are making numerous key decisions.

Who makes the merger decision?

In an article “When Churches Merge” for Leadership Network, Jim Tomberlin and Warren Bird aptly state that “[m]ergers are complicated, and many issues must be addressed when undertaking one.” The authors go on to offer a number of questions leaders should ask about the decision-making involved. Here are some the most pertinent questions for the purpose of this article:

  • How will the decision to merge be decided, and by whom? What do each church’s bylaws require? Will a congregational vote be required? If so, what will be the process and what percentage is required for approval? Even if not required, will a vote or poll be conducted as a way for the congregation to affirm their views? What is the lowest approval percentage the two churches are willing to accept?
  • When is the earliest possible date a merger could occur between the two churches? What are the things that need to happen, and by when, for a merger to occur?
  • In short, how can the merger be done legally, morally, and ethically?

It is critically important to ensure that the right persons or leaders are making the decisions. The ones responsible for decision making should be based on a church’s polity—its governance structure. Generally speaking, the power to make decisions takes one of three forms:

  1. A board-led congregation. The board is authorized to act on behalf of the congregation. This governing body may be known as the board of elders, the board of trustees, the board of directors, or a similar title.
  2. A congregational-led church. As defined by the church’s bylaws, the church’s members vote on most, if not all, issues of significance, including a major decision like a merger.
  3. A denomination-led church (where the local church is a part of a denominational hierarchy).
  4. In a board-led church, a meeting of the board constituting a quorum must be convened. All details of the merger terms need to be considered and voted upon. Even in the case of a board-led church—where the vote of the congregation is not necessary under the governance documents—there are many reasons why seeking support for the decision from church members is prudent.
  5. First, of course, you want members to be welcoming and connected to their counterparts from the other church. And second, many jurisdictions require—regardless of the church’s specific governance structure—a vote of the congregation in the disposition of church property or in the event one or more of the church entities involved discontinues after the merger.
  6. For a congregational-led church, there needs to be proper notice of a meeting, a quorum, and a vote on the merger. Note that in many instances, the bylaws provide that the pastor will have a “super vote” or will hold the deciding vote on a merger. As a practical matter, many mergers are pastorally initiated, so when bylaws grant this kind of voting power to a pastor, that should be noted and communicated openly upfront with the congregation.
  7. When a local church is a part of a denomination, the denomination often initiates the discussion of merger, and the decision ultimately resides with denominational leaders, not the local church’s board or members.
  8. In my experience, a decision by denominational leaders is based on information found in the annual filings from the local church that reflects a steady decrease in attendance, revenue, outreach activities, baptisms, conversions, and the like. Further, the denomination is considering the overall global impact of its churches around the country and, in many cases, around the world. In fact, among the denominations that I represent, I increasingly see headquarters make the decision to merge districts, and districts make the decision to merge local churches.
  9. As a parenthetical to denomination-led mergers, I have found blunders arise based on the false assumption that merging the records of two or more churches at headquarters is sufficient for effectuating a legal merger in the jurisdiction where the churches are located. That is not the case. This error in the distinction between internal operations and statutory requirements can cause a local church to unintentionally run afoul of state and federal laws.
  10. What decisions need to be made?
  11. Once the decision makers are determined, the appropriate leaders should work through the following questions.
  12. Is there unified vision, strategy, and culture?
  13. These are sometimes called the “big three”: vision, strategy, and culture. While it would have been necessary at the very inception, to some degree, for churches considering merging to have found common ground in their manner of operations, it is essential that merging churches are unified when it comes to the “big three.”
Download PDF Checklist

That’s why this decision comes first. If the churches considering a merger determine that they cannot unify in these three key areas, then there would be little reason to move forward.

Jeremy Roberts, in his article 4 Things Every Church’s Vision Should Include, states that the vision for a local church should answer this question: “What does God want us to do?” Roberts says that the four things vision must include are: (1) the commitment to reach lost people; (2) demonstrating care for the members of the church; (3) training the congregation; and (4) sending members out to execute the vision for Jesus.

How this vision is manifested varies greatly from one church to the next, and it is critical to establish an aligned vision that serves to point the merged congregations to “true north.”

The church’s strategy is the plan it uses to reach its vision in a predetermined time. Do each of the churches involved in the merger have a strategic plan? Do these strategies reasonably resemble the priorities of the other? Is each church making significant progress in reaching its strategic goals? Will the merger push the strategic plan forward? It certainly should.

Now to the element of church culture. The culture of the church, says Samuel R. Chand, is best understood in the statement: “This is how we do things here.” In his book Cracking Your Church’s Culture: Seven Keys to Unleashing Vision & Inspiration, Chand shares his belief that the “strongest force in an organization is not vision or strategy—it is the culture which holds all the other components.”

If two or more churches are to come together in a merger, they have to be certain that there are central meeting points of their vision, strategy, and culture. Indeed, how each church “does things” will be a line that flows through every other decision that needs to be made in the merger process.

What will be the merged church’s name?

During due diligence, the churches must determine the name of the merged church. Options include continuing one church’s name, creating a new name that includes parts of both church names, or using a completely new name.

As a legal matter, confirm that the desired name is available for registration with the secretary of state before finalizing the selection of the name.

Your leaders should also review options for website addresses and other intellectual property considerations affecting the name chosen, such as whether there is already a filing with the United States Patent & Trademark Office (USPTO) that would prohibit the use of a logo, mark, or design associated with your chosen name.

The USPTO recommends that you check its site first to make sure someone hasn’t already registered a similar mark. You wouldn’t want to mistakenly infringe on another church’s mark or website address, or go through the trouble of deciding on a name only to find out it is not available in your jurisdiction.

Where will the merged church be located?

Again, based on the information learned during the due diligence stage, a decision should be made as to which location (or locations) will be maintained after the merger. Options include using space already owned or leased by one of the churches or selecting a place new to all merging churches.

For example, one of the two merging churches owns a facility that can accommodate both congregations. The other church is renting a smaller space under a lease that is about to expire. It would likely be best for the merged church to come together at the larger, owned property. On the other hand, if the church with the smaller space still has many years left on its lease and a provision that prohibits the lease from being transferred, your legal counsel may advise you to delay the merger until the lease is closer to its expiration, or to try to negotiate an exit strategy with the landlord.

Relatedly, during the due diligence process, you should check to see if there are any personal guarantees under the lease or in any other contract. This information could be instructive when considering your options.

Consider this example: I recently represented a church that would be subsumed in the merger. The pastor of that church had personally guaranteed a lease that was worth more than $3 million over the life of the lease. Walking away from the lease would have severely harmed the pastor’s credit (not to mention his good name in the community), so that was not an option. Instead, we chose a strategy that would allow for the lease to be paid out over the obligated term while using the leased facility temporarily as an added campus for the merged church.

Another option that is increasingly useful is merging into one entity with multiple permanent sites. As referenced in the book Better Together, Making Church Mergers Work, it is estimated that “1 out of 3 multisite church campuses come as a result of a merger. Growing churches are utilizing mergers as a fast and effective way to go multisite.”

Also, the online campus has become an important addition to physical locations, catapulted by the reality of how COVID-19 required churches to adjust the definition of “meeting together.” Leaders consequently need to decide how their respective online presences—through a website, email communications, and social media—will come together.

Who will be on the pastoral staff?

“The most visible and delicate staff role to discuss in a merger transition is that of pastor,” say the authors of Better Together, Making Church Mergers Work. “What will happen to our pastor is also one of the first questions to address in the merger conversation.”

Because of the nature of the pastoral role and the many considerations unique to each congregation, there is not one answer to this important question; however, I will look at three possibilities.

The first option is to have the lead pastors of the merging churches serve as co-pastors. This would allow the existing pastors to retain top leadership roles and avoid the struggle of having to decide which of them will become lead pastor of the merged church. While this option provides a sense of “ease” by avoiding having to choose one lead pastor, it simultaneously creates a scenario that I rarely have seen succeed.

The challenges with having two lead pastors may include confusion among the staff as they try to figure out who to look to for needed direction; slowed or stalled projects while decisions get stuck at the senior leadership level; frustration among the leaders themselves, who are often used to a certain leadership style; and the optics through the congregational lens that look as though things are not settled at the senior leadership level.

Another option could surface if one of the pastors of the merging churches decides to use the merger as the opportunity to retire or otherwise minimize his involvement. This has the effect of making a clean line of the “before and after” merger scene, but it can add to the complicated feelings members may already have when a merger is announced.

The final and most common option I have seen is for the leadership of both churches to examine a matrix of considerations regarding the pastoral leaders—education, years of experience, size of church, effectiveness in church growth, connectedness in the community, and so on—with an ultimate decision on which of the merging church pastors will serve as lead pastor.

In my experience, honest discussions can lead one of the pastors to feel the call to shift away from the lead pastor role and into a new role. This new role may be something within the merged church (examples I have seen include outreach pastor, executive pastor, campus pastor at the location added by the merger, and pastor of global outreach). On the other hand, the shift could be to a new vocation completely outside the walls of the church (examples I have seen include college professor, entrepreneur, and writer).

In any event, as the saying goes, good fences make good neighbors. It is important for everyone to know what role each of the former lead pastors will take and for this to be communicated clearly with the congregations of each church when the merger is announced.

What other staffing changes will there be?

In a similar manner, the merging churches will need to determine what staff will continue and in what roles. If the merger does not create significant duplication of staff and finances allow for it, it may be best to keep staff for up to three years as the merged church takes root.

In considering staff, you should examine both employees as well as independent contractors. Since many churches have workers in both categories, it will be important to know this in order to get a complete picture of who is on payroll and what services they provide. And like the lead pastor role (and as it applies to specific roles), considerations might also be given to such factors as education, years of experience, size of church, effectiveness in church growth, and connectedness in the community.

How will ministries and ministry leaders change?

I have seen great success achieved when merging churches have complementary ministries. For example, one church is committed to international missions and the other church is committed to local outreach. In such instances, there may be only a limited duplication of efforts.

On the other hand, if the merging churches’ ministries are duplicative, the leaders must decide what ministries to continue and who will lead the new and continuing ministries. Most churches have a youth ministry, for example. If two churches merge and both have youth ministries, how will this ministry change and how will the youth leadership change?

In my experience, many churches strive to integrate both the leadership and the programs without eliminating anything (or anyone) for the immediate future, if budgets allow. Many times, however, the merger documents indicate that this integration is for a limited evaluation period (usually between 12 months and 36 months) at which point the situation will be reevaluated and additional changes made.

How will the new church be governed?

What governance style will the merged church follow and who will choose the governance style? As earlier referenced, the current governance documents are illustrative as to who will be on point for each church to make the merger decision. The same group of decision makers will be responsible to determine the governance style of the merged church. Once the decision is made regarding governance style, it may be necessary to update the church’s bylaws as the governance document. This is discussed further in Part 4 of this series.

In my experience, mergers that opt for board-led governance most often blend board members from each of the merging churches. Generally speaking, the smaller church (which is likely the church merging into the larger church) would take a smaller number of the board seats than the larger church. In any event, the blended board provides both churches with a proverbial seat at the table, which is critical for the ongoing building of trust.

Let’s consider one other possibility. What if a congregational-led church and a board-led church is considering a merger? This could be a very complicated situation fraught with many thorny issues. If a decision about which governance style to use in the merged church cannot not be reached, it could be a “deal breaker.” Further, trying to reach an agreement that does not respect each church’s governance style (as laid out in each church’s governing documents) could be difficult.

The key is transparency and good communication from the beginning so that the parties are aware of differing governance styles and mutually commit to doing the work necessary to harmonize those differences. This is a key area of variance that will need to be aligned before the merger gets finalized.

What are the steps for communicating the merger?

Key decision makers must decide how and when to share the merger news internally, locally, and beyond. On the front end, while the decision makers are still “kicking the tires,” so to speak, I have advised that communications regarding the possible merger remain confidential and shared only on an as-needed basis.

This commitment to confidentiality should be made in writing via a nondisclosure agreement (NDA). Such an agreement would allow the churches to negotiate in good faith regarding the potential merger while committing to keep in strict confidence the potential merger and any/all information received in the course of merger discussions.

While the initial NDA would be between key and pertinent leaders of the merging churches, your attorney may recommend that any staff members who will have access to merger information also sign an NDA. You would only want to involve staff in NDAs on an as-needed basis since the more people who sign NDAs, the more people who know of the potential merger. Staff members can sometimes feel concerned about whether a merger may result in job loss and may have less motivation for keeping information confidential if they leave the employ of the church.

Caution. Don’t attempt to create an NDA without guidance from qualified legal counsel.

When the merger decision has been made, it is important to share this information in a positive and measured way. Of course, it is most important that the membership of the merging congregations be the first to know, and a detailed communications strategy be developed from there. Commonly, the merger of larger churches may require a more detailed and expansive communications strategy.

How will congregants mourn and say goodbye?

It is important to end one thing well before moving to the next. While it is exciting to begin plans for the newly merged church, it is critical to also plan how members can say goodbye to their respective churches, including the ministries that are either changing or dissolving, as well as people whose roles are changing or phasing out with the merger.

Many see a proper ending as the precursor to a good new beginning. Giving voice to the fact that the merger may be hard on some—as they leave behind the history of something as personal as one’s church—can provide the needed catharsis.

What will honoring the merging church look like?

Decide how to honor the church formed through the merger. Perhaps the respective churches provide a beloved ritual or item. Perhaps some type of ceremony commemorating the union is also hosted. I have also seen beautiful video presentations that honor the history, leaders, and staff of the merging churches. Regardless of what gets pursued, make certain to honor the newly formed congregation and establish new shared traditions and culture.

Note. Each of the above decision areas are listed on the downloadable checklist.

Making the right decisions by the right people

Leaders should be keenly aware of what merger decisions need to be made and who has the legal authority to make such decisions. And by thinking through and following through on the above questions, these key decision makers should be ready to take the specific actions steps.

Also in this series:

Part 1: Is a Merger the Right Next Step for Your Church?

Part 2: The Documents Needed for a Successful Church Merger

Part 4: Finalizing a Merger

Erika E. Cole, Esq., known as The Church Attorney®, is one of only a handful of attorneys in the nation who practices exclusively in the area of church law. She currently serves as a senior editorial advisor for Christianity Today’s ChurchLawAndTax.com.

Part 2 of 4

The Documents Needed for a Successful Church Merger

Be sure you collect all the needed paperwork to keep the process moving forward.

In the first installment of this four-part series, I shared that church mergers are on the rise. As an attorney whose practice focuses solely on the representation of churches, I see churches opt for this useful legal strategy as a viable means to sustain a stymied church or to further grow a healthy church.

Mergers will be an especially important consideration as many churches move toward a post-COVID-19 existence. As David Kinnaman, the president of Barna Group, said regarding the 2020 state of the church, “[t]he challenges of leading the people of God are formidable and still the opportunities for community transformation and personal flourishing are surprisingly bright.” I believe that church mergers are such a bright spot. To be successful, however, the decision to merge must begin with earnest prayer and deep spiritual contemplation. But it cannot stop there. The most successful mergers have a healthy recognition of the legal, accounting, property, and other temporal—but important—considerations.

While the legal nuts and bolts of a merger are similar—whether combining two businesses or two (or more) churches—the unique missions of the churches, the special relationships between the people in those churches, and the churches’ tax-exempt statuses make the process distinct from the run-of-the-mill corporate merger.

What is a church merger?

A church merger legally combines two or more churches into one remaining entity.

As a general matter, and as I explained in Part 1 of this series, there are three ways a church merger can be done:

  • Church A merges into Church B (the surviving entity);
  • Church A dissolves, leaving its assets to Church B after all of Church A’s liabilities are disposed; or
  • Both Church A and Church B dissolve and form a new Church C.

Deciding which merger strategy to use is made on a case-by-case basis and can be best determined as a result of due diligence. Due diligence is a systematic process involving detailed reviews of the legal, accounting, and other relevant information from each of the merging churches.

A high level of transparency is needed since the decision to merge is likely one of the most significant decisions that church leaders will make. While it can seem easier to bypass due diligence in favor of a “handshake,” to do so would be to the potential peril of all parties. The process of due diligence can take many months to complete and encompasses the areas detailed in this article and the remaining two articles in this series.

Read more about how to approach due diligence in Part 1.

What documents and information should be gathered upfront?

For the document-gathering process—utilizing the provided checklist—prioritize gathering the following.

Download PDF Checklist

Articles of incorporation and all amendments for the existing churches

The articles of incorporation is the document that must be filed with the secretary of state in order to form the legal entity. It must be filed in the jurisdiction where the church is located, or as may be the case for multisite churches, where the central organization is located. All states and the District of Columbia have their own requirements as to what must be included in articles of incorporation. Generally speaking, each state requires:

  • the name of the church;
  • the principal address of the church (many states require this to be a physical address, not a post office box);
  • the statement outlining the purpose for the creation of the new legal entity;
  • the names of trustees, the initial number of trustees, and details of how new trustees will be elected;
  • the name and street address of the church’s registered agent. The registered agent (known in some states as resident agent) is the individual or corporation designated by the church to receive any official notice that may need to be served on the church. The registered agent who receives such information on the church’s behalf ensures the proper parties are notified and that any legal matters are addressed; and
  • certain statements a church may have included for state and federal tax-exempt purposes regarding the use of funds, restricted activities, and the distribution of assets upon dissolution.

Any articles of amendment filed with the state must be gathered as well. Articles of amendment (which serve to amend or otherwise restate the articles of incorporation) may be filed when a church changes its name, broadens or otherwise alters its purpose, or amends other salient details of its operations.

The formation documents are particularly important during the merger process because each party should know the legal status of the other and be certain that each side is in good standing with the state where it was formed. As a general matter, if a church is not in good standing, any merger documents will be rejected for filing until the issue or issues get resolved.

Lastly, it is important to use the church’s legal name in all merger documents, which should be confirmed by reviewing the official corporate records.

Note. Some churches are not incorporated. Some believe incorporating may “entangle” a church in government affairs, create high costs to maintain, or cause administrative burdens for staff to make the annual or biannual report that most states require a legal entity to file.

As a general matter, incorporation wouldn’t entangle a church with the state any more than when it files a property deed, which also has to be done with the state government.

As to annual costs, filing fees generally run between $0 and $300 and most forms can be filed online without much trouble.

In any event, even if a church is unincorporated, it can certainly enter into a merger; however, the fact that a church is unincorporated may be one of the many considerations to weigh during due diligence.

Learn about the legal ramifications of unincorporated churches, and the personal liability they can pose to their members, in Church Law & Tax’s Legal Library.

Bylaws

Bylaws are the internal governing documents outlining how the board will operate, its term, and its process for elections, as well as the roles of officers, the qualifications of officers, and other salient details guiding internal operations.

Unlike the articles of incorporation, bylaws are generally not filed with the state. Because of this, it is particularly important that a church diligently keep its bylaws in a safe place, including a current paper copy. Reviewing the bylaws is of critical importance during the due diligence period. This document will confirm who has the authority to authorize the merger, and what governance process is required. For example, is a two-thirds vote of approval by the board required or a majority vote of the congregation? How much notice is required before a meeting on the merger question can be held?

Constitution

A church constitution outlines a church’s tenets of faith, including matters like baptism, the sacraments, marriage, and so on. In the context of a merger, the constitution can provide great insights into the compatibility of the churches in terms of religious beliefs.

Note. For some churches, this document is called the articles of faith. Other churches combine the constitution and bylaws. For myriad reasons, I never recommend combining the bylaws and constitution. This is primarily because the bylaws may be examined by a court of law when considering whether certain operations have been properly followed, while the constitution is ecclesiastical in nature—and every effort should be made to keep such matters well beyond the reach of the courts.

All policies and procedures documents

Policies and procedures in the context of church operations includes employment policies, child protection policies, sexual harassment policies, social media policies, expense reimbursement policies, and so on. These types of policies form the backbone of each church’s operations and, if they exist in good form, can save a lot of time and effort in avoiding the proverbial recreating of the wheel during the merger.

EIN letter from the IRS

An employer identification number (EIN), also known as a federal tax identification number, is assigned by the Internal Revenue Service (IRS) when a Form SS-4 is completed and submitted by an authorized individual on behalf of the church. Just like a Social Security number identifies an individual, an EIN identifies a church.

Usually, when the church opens a bank account, this document is requested by the bank to ensure that the funds are held for the benefit of the church. This number is also used to identify any payroll taxes that may be payable (which is generally the case when a church has employees), and the EIN is listed in any Form 1099s issued by the church to independent contractors (if it has any). Verifying each church’s correct EIN will be important as merger documents are prepared.

All relevant tax- and exemption-related records

Gather all tax- and exemption-related records, including IRS letters of determination, state sales tax certificates, and real property exemptions.

While churches are not required to file Form 1023 for recognition of exemption under Internal Revenue Code Section 501(c)(3), many churches do so in order to receive the official IRS letter of determination to plainly show donors the church’s exempt status.

Moreover, as state and local governments struggle with their fiscal bottom lines, they are increasingly raising the bar on churches and other nonprofits whose tax breaks are seen as taking away from their coffers.

In many (if not most) jurisdictions, local governments are requiring churches to provide their IRS letters of determination with applications for other tax exemptions, such as sales tax exemptions, property tax exemptions, and other local tax exemptions.

Note. In the process of gathering important documents during due diligence, be sure to pull and organize all exemption records, including the Form 1023 application for exemption (if one was filed by any of the churches involved with the potential merger). The IRS requires a church to keep on file its Form 1023 application as submitted. If your church can’t locate its letter of determination, you can complete and submit Form 4506-A to request a confirmation of your exempt status.

Copies of all property deeds and related records

Each church involved in the merger should gather a copy of deeds to all real property it owns. If your church doesn’t have its property deeds, a request for them usually can be made to the jurisdiction where the property is located.

Also compile any records related to any deeds of trusts, mortgages, or other related property records.

Other documents and information

  • Governing board: Prepare a list, including titles, of all board members, officers, and their roles for each church. These individuals will likely need to make the final decision (or submit the decision to the congregation if it operates by a congregational model).
  • Church staff: Prepare a list that includes titles, roles, responsibilities, years employed, and levels of training. Gather and review all related written employment agreements and independent contractor agreements. Be sure to confirm that workers are properly designated as employees or independent contractors.
  • Ministries: Prepare a list that includes ministry leaders’ names, titles, years served, and the purpose and accomplishments of each ministry. Should the merger move forward, it will be important to know which ministries operate successfully and should continue as the churches combine.
  • Ancillary ministries and integrated auxiliaries: For each separately incorporated ministry (such as a school, childcare center, and so on), complete due diligence as outlined in the provided checklist.
  • Ministry employees and volunteers: Prepare a list of employees and volunteers working in the various ministries and ancillary ministries. Include names, titles, roles, wages, years employed, written agreements, and hours worked per week—even for those who are not paid.
  • Assets: Create a list of assets that includes pertinent related details, such as market value, age, condition, repairs needed, deeds, titles, insurance policies, and service contracts. Also include any known grants, bequests, and promised gifts.
  • Debts: Prepare a list of all debts owed, including their pay-off amounts. This list should be supported by the related loan documents. Remember to also include all service contracts not listed above.

Moving toward a successful merger

A successful merger can be a great way to extend the impact of two churches with similar missions by coming together under the strength of one name. Having gathered and reviewed the critical due diligence information as outlined above, I will next—in Part 3—review the critical decisions that church leaders will need to undertake as they consider the possibility of a church merger.

Also in this series:

Part 1: Is a Merger the Right Next Step for Your Church?

Part 3: Deciding Factors for a Sound Merger

Part 4: Finalizing a Merger

Erika E. Cole, Esq., known as The Church Attorney®, is one of only a handful of attorneys in the nation who practices exclusively in the area of church law. She currently serves as a senior editorial advisor for Christianity Today’s ChurchLawAndTax.com.

Recommended Reading

Housing Allowance Basics

Learn and understand more about the most important tax advantage available to ministers—the housing allowance.

The housing allowance is one of the most important tax advantages available to ministers. Therefore, it’s key for church leaders to understand how it works, how to apply it and the many nuances that come with it. 

The good news is Church Law & Tax offers a host of articles, Q&A’s, and some excellent resources to help you grow in your understand of housing allowance basics, beginning with this recommended reading list.

Spend time digging in and, as always, considering joining thousands of other church leaders as a member of Christianity Today’s Church Law & Tax! 

Also see:

Church & Clergy Tax Guide (chapter 6)

Church Compensation: From Strategic Plan to Compliance (chapter 11)

Ten Steps to Consider When Embezzlement Is Suspected

How to respond when the unthinkable becomes a reality.

Many churches have experienced one or more incidents of embezzlement. In some cases, the amounts are substantial. Church leaders often do not know how to respond to such incidents. Here are ten steps that can help.

1. Tax liability for embezzler

Embezzled funds constitute taxable income to the embezzler. The embezzler has a legal duty to report the full amount of the embezzled funds as taxable income on his or tax return, whether or not the employer reports the embezzled funds as taxable income on the employee’s W-2 or 1099. If funds were embezzled in prior years, then the employee will need to file amended tax returns for each of those years to report the illegal income since embezzlement occurs in the year the funds are misappropriated.

IRS Publication 525 states: “Illegal income, such as stolen or embezzled funds, must be included in your income on line 21 of Form 1040, or on Schedule C (Form 1040) or Schedule C-EZ (Form 1040) if from your self-employment activity.”

2. Employer not required to report funds on employee’s W-2

Federal law does not require employers to report embezzled funds on an employee’s W-2, or on a Form 1099. This makes sense, since in most cases an employer will not know how much was stolen. How can an employer report an amount that is undetermined? Embezzlers are not of much help, since even when they confess to their acts they typically admit to stealing far less than they actually took. This means that any attempt by an employer to report embezzled funds on an employee’s W-2 or 1099 will almost always represent an understatement of what was taken.

3. Embezzled funds can be added to employee’s W-2 if actual amount is determined

In rare cases, an employer may be able to determine the actual amount of embezzled funds as well as the perpetrator’s identity. In such a case, the full amount may be added to the employee’s W-2, or it can be reported on a Form 1099 as miscellaneous income. But remember, do not use this option unless you are certain that you know the amount that was stolen as well as the thief’s identity.

4. Churches reporting funds may be exposed to tax liability if the amount isn’t accurate

In most cases, employers do not know the actual amount of embezzled funds. The embezzler’s “confession” is unreliable, if not worthless. Reporting inaccurate estimates on a W-2 or 1099 will be misleading. Also, if you report allegedly embezzled funds on an employee’s W-2 or 1099 without proof of guilt, this may expose the church to liability on the basis of several grounds. One of these is section 7434 of the tax code, which imposes a penalty of the greater of $5,000 or actual damages plus attorney’s fees on employers that willfully file a fraudulent Form 1099.

5. Church will not be penalized for failing to file a W-2 if actual amount of embezzled funds is not known

Employers that cannot determine the actual amount of funds that an employee embezzled, or the employee’s identity, will not be penalized by the IRS for failing to file a W-2 or 1099 that reports an estimate of the amount stolen.

Employers that are certain of the identity of the embezzler, and the amount stolen, may be subject to a penalty under section 6721 of the tax code for failure to report the amount on the employee’s W-2 or 1099. This penalty is $50, or up to the greater of $100 or 10 percent of the unreported amount in the case of an intentional disregard of the filing requirement. For employers that are certain how much was stolen, and who intentionally fail to report it, this penalty can be substantial. To illustrate, let’s say that church leaders know, with certainty, that a particular employee embezzled $100,000, but they choose to forgive the person and not report the stolen funds as taxable income. Since this represents an intentional disregard of the filing requirement, the church is subject to a penalty of up to 10 percent of the unreported amount, or $10,000. But note that there is no penalty if the failure to report is due to reasonable cause, such as uncertainty as to how much was embezzled, or the identity of the embezzler.

6. Churches can file a Form 3949-A to report suspected embezzlement

If the full amount of the embezzlement is not known with certainty, then church leaders have the option of filing a Form 3949-A (“Information Referral”) with the IRS. Form 3949-A is a form that allows employers to report suspected illegal activity, including embezzlement, to the IRS. The IRS will launch an investigation based on the information provided on the Form 3949-A. If the employee in fact has embezzled funds and not reported them as taxable income, the IRS may assess criminal sanctions for failure to report taxable income.

In many cases, filing Form 3949-A with the IRS is a church’s best option when embezzlement is suspected.

7. The crime of embezzlement is complete the moment the embezzler converts the money to his or her own use

In some cases, employees who embezzle funds will agree to pay them back, when confronted, if the church agrees not to report the embezzlement to the police or the IRS. Does this convert the embezzled funds into a loan, thereby relieving the employee and the church of any obligation to report the funds as taxable income in the year the embezzlement occurred? The answer is no.

Most people who embezzle funds insist that they intended to pay the money back and were simply “borrowing” the funds temporarily. An intent to pay back embezzled funds is not a defense to the crime of embezzlement. Most church employees who embezzle funds plan on repaying the church fully before anyone suspects what has happened. One can only imagine how many such schemes actually work without anyone knowing about it. The courts are not persuaded by the claims of embezzlers that they intended to fully pay back the funds they misappropriated. The crime is complete when the embezzler misappropriates the church’s funds to his or her own personal use. As one court has noted:

The act of embezzlement is complete the moment the official converts the money to his own use even though he then has the intent to restore it. Few embezzlements are committed except with the full belief upon the part of the guilty person that he can and will restore the property before the day of accounting occurs. There is where the danger lies and the statute prohibiting embezzlement is passed in order to protect the public against such venturesome enterprises by people who have money in their control.

In short, it does not matter that someone intended to pay back embezzled funds. This intent in no way justifies or excuses the crime. The crime is complete when the funds are converted to one’s own use—whether or not there was an intent to pay them back.

8. Attempting to recharacterize embezzled funds as a loan

There is yet another problem with attempting to recharacterize embezzled funds as a loan. If the church enters into a loan agreement with the embezzler, this may require congregational approval. Many church bylaws require congregational authorization of any indebtedness, and this would include any attempt to reclassify embezzled funds as a loan. Of course, this would have the collateral consequence of apprising the congregation of what has happened.

9. Audits promote accountability against weak internal controls

Embezzlement almost always occurs because of weak internal controls. Internal controls are procedures that reduce the risk of misappropriation in the handling of cash and other assets. One of the big advantages of having a CPA firm audit your church’s financial statements and procedures annually is that the CPAs will look for weaknesses in your internal controls, thereby substantially reducing the risk of embezzlement. In short, an audit promotes an environment of accountability in which opportunities for embezzlement (and therefore the risk of embezzlement) are reduced. And, the CPAs who conduct the audit will provide the church leadership with a “management letter” that points out weaknesses and inefficiencies in the church’s accounting and financial procedures. This information can be invaluable to church leaders. Yes, the cost of an audit can be substantial, but many consider it a reasonable investment to promote financial integrity. Also note:

  • Only a certified public accountant (CPA) can “audit” a church’s financial statements and records. In most states it is unlawful for anyone other than a licensed CPA to use the term “audit” in examining an entity’s financial statements and records and issuing an opinion as to their compliance with generally accepted accounting principles.
  • In some cases, churches are required to have an audit. Here are three common ways that this occurs: (1) A church’s bylaws or other governing document requires an annual audit. (2) Churches that issue securities as part of a fundraising program must have audited financial statements that are included in the “prospectus” or offering circular that is provided to investors and potential investors. (3) In some cases, a bank may require that a church have an audit in order to qualify for a loan.
  • Churches can control the cost of an audit by obtaining competitive bids. Also, by staying with the same CPA firm, most churches will realize a savings in the second and succeeding years since the CPA will not have to spend time becoming familiar with the church’s financial and accounting procedures.

10. Complex legal and tax issues surround embezzlement

Cases of embezzlement raise a number of complex legal and tax issues. Our recommendation is that you retain an attorney to assist you in responding to these issues.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

Getting Proactive About Illness Prevention in Our Churches

How the pandemic has shaped the way church leaders mitigate the spread of sicknesses—and what to expect going forward.

COVID-19 has left an indelible mark on congregational life and the practice of ministry. Many pastors and other church leaders wonder if things will get back to “normal,” or if we have entered a new era with long-term implications for church programs—ranging from worship services to caring for children in the church nursery.

No one has been left unaffected. As we move forward, the weight of these experiences will continue to influence church members in different ways. Some will be anxious to return to pre-pandemic church life. Others will be guarded and hesitant, concerned about their safety and the safety of loved ones.

That mix of desire and uncertainty, of hope and fear, is further complicated by new variants of the virus and new information about the pandemic that changes from one week to the next, sometimes in contradictory ways.

In essence, church leaders now face the transition from pandemic ministry to post-pandemic ministry within an environment deeply affecting people emotionally, spiritually, physically, and financially.

Yet glimmers of hope also exist. People are getting vaccinated. Government restrictions are easing.

Rather than stand by as passive observers, church leaders should address the health concerns and fears that church members might have concerning the reentry into congregational life.

This article addresses four key areas that can play a role in shaping the journey forward: (1) understand health risks that affect churches; (2) identify practices to reduce risks of infection and the transmission of disease within church programs and facilities; (3) establish a church safety and health team to oversee implementation of the church’s health guidelines; and (4) develop a training and communication strategy that reinforces health practices.

Understand health risks that affect churches

Basic health risks and infectious diseases that arise in church life are not new and commonly occur throughout society. One difference, though, is that church facilities and programs can represent higher levels of risk of infection than other settings involving groups of people.

This is true for two reasons.

One, the typical congregation encompasses a many age groups ranging from infants to the elderly. As a result, some of these individuals are among the most vulnerable with respect to infectious diseases.

And two, churches engender close contact, including shaking hands, hugging, touching shared surfaces (such as offering plates, bulletins, hymnals, pews, door handles, communion trays, coffee pots, and the list goes on). And this is before adding in programs for children—from changing diapers in the church nursery to toddlers sharing slobbery toys.

Every age group poses unique health challenges. Of course, these realities have been present for generations, and they haven’t had a dramatic impact on congregational life, so why the concern now? The answer is simple: COVID-19.

While most people who attend church may not worry about catching a cold or even getting the flu, COVID-19 represents a different level of risk. And most importantly, the same health precautions that reduce the risk of infection from COVID-19 also reduce the risk of most other infectious diseases a person could acquire at a church event.

Thus, a church’s response to COVID-19 lays the foundation for a broader, more intentional strategy to promote healthy practices many people will be concerned about before attending church programs.

Furthermore, the focus is not on developing a complex set of health guidelines in response to COVID-19. Rather, the focus should be zeroing in on two common practices that require diligence and prove very effective with preventing COVID-19 and numerous other ailments: handwashing and covering coughs and sneezes.

Identify practices to reduce risks of infection and the transmission of disease

The most common means of transmitting an infectious disease is through direct contact, typically with the hands. Disease can also be spread through airborne respiratory droplets. Reducing the risks in these two areas should play a prominent role in developing health guidelines for your church.

Reduce risk on surfaces

Let’s start with a simple threefold practice that will benefit every church: clean, sanitize, and disinfect. Cleaners remove dirt and particles, typically with soap and water or some other cleaner. Sanitizers reduce germs from surfaces and are often used in laundry products. Disinfectants kill or inactivate bacteria and viruses on hard, nonporous surfaces, such as counters and door handles.

To be successful, your church needs a checklist of what to clean, what to sanitize, and what to disinfect. In some cases, a janitor can do many of these tasks. But some will require the help of church volunteer workers, such as ushers and teachers.

Prior to the pandemic, the focus was on cleaning efforts typically comprised of traditional janitorial services, such as mopping floors or vacuuming rugs. In the “new normal,” sanitizing and disinfecting should become part of the routine health care that exists within the church. Attention must be given not simply to wiping door handles with a damp rag, but on using a disinfecting agent, such as a wipe or spray.

Keep no-touch wastebaskets near latched restroom doors so people can use a paper towel to open the door handle and then discard the paper into the wastebasket.

Lastly, develop a daily, weekly, and monthly schedule for your church’s cleaning, sanitizing, and disinfecting routines.

Handwashing

In addition to cleaning, sanitizing, and disinfecting surfaces, attention should be given to proper hand-washing techniques. Children especially should be shown how to wash their hands. Posters illustrating proper technique should be placed at all sinks used by children, teenagers, and adults. Free posters can be found online from the Centers for Disease Control and Prevention (CDC) as well as other sites (see resources below).

Church nurseries

Church nurseries require special attention and staff training. If your church operates a licensed daycare or preschool, you will be subject to county and state health requirements regarding the operation of those programs. Whether or not your church nursery is covered by such regulations may vary from state to state. Make sure you meet any existing requirements.

In many churches, nurseries are staffed using volunteer workers who lack specific training on health procedures. As a result, health practices can become inconsistent based on the knowledge and experience of the volunteer. Minimally, attention should be given to the following areas:

  • Make sure all surfaces have been sanitized or disinfected. Do not use toys, objects, or supplies that cannot be sanitized. If an object or toy becomes contaminated, set it aside until it can be cleaned.
  • Develop a standard procedure for transferring the child from the caregiver to the nursery worker. This should include a brief conversation with the parent or caregiver when the child arrives that clarifies if the child is suffering from any illness or injury. Also ask when the child last used the toilet, which can indicate if the child’s hands need to be washed and helps the worker anticipate restroom needs.
  • If possible, keep children 3 years and younger separated from older children. Infants 12 months and younger are at the highest risk for infectious respiratory tract diseases.
  • Change diapers in a designated location, preferably within reach of a sink, and always wash hands before and after, even if gloves are used.
  • Implement handwashing procedures. All children should be taught proper handwashing techniques using soap and water, which reduces the likelihood of colds and diarrhea. If children share objects, such as art supplies, toys, or books, they should wash their hands before and after use.

Reduce airbone risks

Prior to the release of the COVID-19 vaccines, the two primary strategies to reduce the transmission of the virus involved social distancing and wearing masks. That’s because coughing and sneezing can lead to the transmission of COVID-19, just as it does with a variety of other illnesses, such as flu, strep throat, whooping cough, and respiratory syncytial virus.

In some states, the transition away from wearing masks has already begun. Soon, church leaders will face decisions on whether to maintain social distancing protocols and the use of masks in worship and other church programs.

From a health perspective, the best course of action is to rely upon guidance from the CDC and other qualified health organizations. Even so, this transition will not happen quickly, and some individuals are likely to wear masks for the foreseeable future, some out of fear, others out of caution or respect for the health and safety of those around them.

Church leaders who demonstrate awareness of these concerns and take steps to maintain safe environments can reduce the turbulence of eventually returning to services without masks. How this process unfolds will vary from one congregation to the next. But one thing that remain consistent, regardless of church size or location, is an effort to reduce the transmission of respiratory diseases that are spread by coughing and sneezing—the underlying reason for social distancing and the wearing masks in the first place.

There are other methods for reducing the transmission of COVID-19 besides mask-wearing. In many cases, a person may be asymptomatic and unaware that they represent a health risk to others. Encouraging cough and sneezing etiquette is a simple, but important, way for churches to promote safe health practices.

Covering one’s mouth with a tissue when coughing or sneezing may help. If a tissue is not available, people should cough into their elbow, avoiding the hands.

Most illnesses found in childcare settings, such as a church nursery, preschool, or daycare, are associated with respiratory symptoms. Plus, when a child becomes ill, it can have a financial impact on the family if a parent misses work to provide care.

Catching a cold is bad enough, but for some individuals within a church, such as infants, the elderly, and individuals with impaired immune systems, a cough or sneeze could transmit a life-threatening illness, especially during flu season.

Key point. Church leaders should consider working with their county public health agency to sponsor a vaccination day at the church during flu season.

Key point. When weather permits, having windows open provides access to fresh air and improves ventilation, reducing the risk of airborne transmission of germs. However, only open windows that do not pose a safety risk. Also, take into account people who have allergies or asthma

Form a safety and health team

The success of your health program will depend on leadership. Identifying and recruiting leaders to serve on a health and safety team is a crucial step in establishing a viable program.

Considering the nature of the COVID-19 pandemic and the impact it has had on individuals, families, and entire congregations, chances are good that your church has members who care deeply about these health and safety concerns, and who will make good team members.

The team should oversee training, communication, maintenance of sanitizing and disinfecting supplies, and completion of safety tasks. Some of these tasks may be incorporated into custodial care. (For smaller churches, one individual may be adequate to coordinate or perform key tasks.)

Develop a training and communication strategy

Once leaders have been recruited, tasks identified, and schedules set (such as for routine cleaning), focus should be placed upon training church workers on appropriate health and safety procedures. The article A Coronavirus Response Plan for Churches will help your church’s leadership respond to COVID-19, including the deployment of a response team.

Train staff

Key volunteers to train include ushers, greeters, nursery workers, and individuals who serve as group leaders or teachers in educational programs. Conduct training at least annually and cover all areas of touching and respiratory concerns, as well as first aid. To a large degree, the church will be dependent upon these individuals to carry out key tasks.

For example, for worship services, a church might expand the duties of ushers or greeters to include disinfecting door handles, pews, and other high-touch surfaces prior to services.

Teachers could fulfill these tasks in their own classrooms. Special attention should be given to the training of nursery workers since the care of infants and toddlers includes multiple health and safety concerns. All volunteers should be provided written guidelines and checklists. In addition, all cleaning supplies should be stored safely and out of the reach of children.

Communicate best practices to members and visitors

Along with training staff, you need to also communicate health and safety practices to congregational members and visitors. The goal is to establish routine patterns of behavior to reduce the transmission of infectious diseases that occur through touching and/or respiration, primarily coughing and sneezing.

In sustaining healthy practices, your congregation will benefit from a broad communication strategy that focuses on two areas: (a) handwashing and (b) covering sneezes and coughs. While it may sound simplistic, handwashing and covering sneezes and coughs are frontline strategies in the prevention of infectious diseases. Special attention should be given to these practices during flu season.

Posters reminding people to wash their hands should be placed in every restroom. All children and teenagers should be instructed on proper handwashing techniques as well as covering coughs and sneezes (see above).

Hand sanitizer stations can be positioned near entrances, exits, kitchens, gymnasiums, and other key locations where people congregate. Children under 24 months should not use hand sanitizers, and older children should be supervised during use. Tissue boxes can be placed in restrooms and on church pews.

Make use of the church website, newsletter, bulletin, and pulpit announcements to reinforce these practices. Create and distribute a brochure to all members and visitors that describes the church’s health guidelines for adults and children. Repetition of these messages will help make safe practices the norm. In addition, encourage people to stay home when they are feeling ill. Members and visitors will be appreciative of the church’s efforts to provide a safe environment.

The goal is to establish routine patterns of behavior to reduce the transmission of infectious diseases that occur through touching and/or respiration, primarily coughing and sneezing.

Post-transition fears

How churches transition into a post-pandemic world is not completely clear. For example, passing offering plates during services has been discouraged during the pandemic. Should churches resume this practice once the pandemic ends? What about passing communion trays? Or instructing members to greet one another during the service? Or congregational singing and choirs?

Many of these practices have been part of church life for generations. While some members won’t give a second thought to passing an offering plate or communion tray, others may feel uncomfortable.

The reality is that for over one year we have been inundated with messages about the deadly nature of COVID-19 and that has a psychological impact regarding health risk. Hundreds of thousands of people have seen loved ones die, jobs have been lost, businesses have struggled. The pandemic has created different levels of fear within people, and those fears are not going to disappear immediately.

No one can say with certainty how or when a congregation should restart practices that were suspended during the pandemic, but leaders would be wise to take the fears and concerns of congregants and visitors into account as they make decisions about moving forward.

Resources

The following will further aid your church’s efforts to guide the congregation into the post-pandemic world and beyond:

James F. Cobble, Jr., received his master of divinity degree from McCormick Theological Seminary, and also has doctoral degrees from both Princeton Theological Seminary and the University of Illinois.

Q&A: Are Group Health Sharing Plan Costs Eligible for FSA Reimbursement?

A Church Law & Tax member asks “What is eligible for FSA reimbursements?” The answer depends, based on current guidance from the IRS.

Q: Our church has several employees who opt out of group health insurance and instead elect to participate in a group “health sharing plan.” It is my understanding that any out-of-pocket health expenses incurred by an employee are eligible for a Flexible Spending Account (FSA), provided they are included on the Internal Revenue Service’s (IRS) list of eligible reimbursed expenses.

Could you please clarify if the monthly “subscription” or “membership” cost for a health sharing plan paid by these employees could be covered as an FSA reimbursement?

And, more generally speaking, are there any situations in which a church pays the membership fee for a health sharing plan as a part of any tax-free fringe benefit plan?


“Medical insurance” does not include membership fees or subscription costs to a faith-based health sharing plan.

In general, since a fee or subscription is not included in the definition of a medical expense, it is not an eligible expense for “health plans” provided to employees. As such, the payments for these plans are not eligible medical expenses available for reimbursement from an FSA.


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We tell clients that employer-paid health sharing plan membership fees or subscription costs are taxable to employees.

A potential exception to the above advice is when churches create a “self-insured” health plan. Sometimes the church will use the health sharing arrangement to fund the benefits it owes under its self-insured health plan.

Affordable Care Act (ACA) compliance requires the church to have an unlimited liability for health benefits under the self-insured plan. Attorneys for health sharing plans sometimes recommend this approach. That’s because it is a way to incorporate health sharing plans into the church’s group health plan.

According to some health sharing plans, a church’s payment of the membership fee is not taxable to the employee. This is because the church’s self-insured plan is the sole beneficiary under the health sharing plan.

For this strategy to work, however, the church must draft and adopt a comprehensive health benefit plan. The comprehensive plan must meet all the requirements for a self-insured health plan under the ACA. The church should retain an experienced benefits attorney to consult on and draft such a plan.

In June of 2020, the IRS issued a proposed rule changing the above advice. The new rule proposed regulations defining “insurance” for purposes of medical expenses to include heath sharing plan arrangements.

People submitted comments and the IRS scheduled a public hearing, but they never published the regulations. Therefore, the long-standing advice described above remains current until the IRS publishes the proposed regulations. With the current moratorium on new regulations, it is doubtful this will occur in the near future.

In summary, we tell churches to tax the membership fees or subscription costs of health sharing plans to employees.

This is unless the church has a qualifying self-insured health plan covering the costs.

Elaine L. Sommerville is licensed as a certified public accountant by the State of Texas. She has worked in public accounting since 1985.

Recommended Reading

Getting Meetings Right

Online or in-person, understand what churches need to know to conduct legally sound meetings.

While annual business meetings and monthly board meetings may seem seem like a less-than-exciting side of ministry, they deserve as much attention as planning a sermon series or an evangelism event. After all, it’s in these meetings that critical, and sometimes legally binding, decisions get made, including the elections of board members, the adoptions of budgets, or employment decisions about ministers.

To help you and your team run meetings efficiently, effectively, and–perhaps most importantly–legally, we’ve pulled together a recommended reading list of essential articles, plus an infographic to offer key guidance you need to get meetings right.

Legal cases concerning church meetings

Attorney Richard R. Hammar has reviewed tens of thousands of cases throughout much of the past four decades, and offers his analylsis of those that directly affect churches and clergy in the Legal Developments section of ChurchLawAndTax.com. From interpretations of bylaws to the validity of decisions made at a church meeting, these cases demonstrate the need to pay close attention to the way meetings are convened and conducted.

Best Practices for Recording Church Events and Activities

From worship services to children’s programs and business meetings, a sound policy ensures legal compliance.

Shouting “Amen” at a computer screen may have seemed unusual 12 months ago, but COVID-19 has changed many churches’ approach to Sunday worship, Bible studies, prayer gatherings, governance meetings, and staff meetings.

Moving these events to online platforms like Zoom, Facebook Live, or YouTube has been critical for delivering teaching and maintaining fellowship as best as possible. Likewise, many ministry employees and volunteers now work and serve remotely as the new norm, with videoconferences substituting for in-person meetings and program activities.

To what extent may churches and other ministries record their activities, particularly if the recordings contain people’s images, names, and potentially sensitive information? Is doing so always legal or does legality depend on specific locations and situations? What constitutes best practices for handling live online events, video recordings, as well as related audio recordings and photographs?

From ad hoc solutions to a legal policy

As with many COVID-related issues, ministries may have answered these questions on an ad hoc basis in the early weeks and months of the pandemic, perhaps even quickly pulling together ministry practices for photo and video usage.

Now is an excellent time to more carefully address such important matters through developing, adopting, and implementing a formal and legally compliant video and audio recording policy. Such a policy should define when video and audio recordings may be made, identify appropriate safeguards related to consent and personal privacy, and address related considerations like intellectual property ownership and usage. Optimally, the policy should apply to both program activities and the ministry work environment.

What to consider when creating a policy

The accompanying PDF sample policy spells out a suggested scope, applicable requirements, and compliance aspects. In considering such a policy, ministry leaders should evaluate and address the following policy goals.

Define permitted recordings and photography

What will be the scope of permitted recordings? The policy should state the permissible circumstances for video, audio recordings, and photography taken during worship services and ministry activities. These parameters provide clear limits for a church when conducting online activities. For example, a church that livestreams its worship services may want to retain all control and discretion by allowing only authorized church personnel to record the services.

Tip. A church may determine that personally shared prayer requests or confession-oriented statements will remain within a small group’s online discussion, with no additional posting allowed (and including requests or statements made both orally or through “chat” communications).

Tip. A ministry may decide that only worship services may be recorded and no other activities (e.g., staff meetings, board meetings, small groups or Bible studies, and children’s ministry) due to related privacy and confidentiality concerns.

Obtain consent

The policy should address consent for video and audio recording for those present at the service or activity. How will consent be obtained—expressly through a written waiver and release form, implied by each person’s participation, via website login protocols, or perhaps all three? An announcement at the outset of a worship service, whether oral or written, could be quite important for garnering implied consent. Adding specific waiver language to children’s program consent forms could be effective too. (See the sample waiver language PDF—which can be adapted for both a child and an adult.)

Caution. It is a crime under certain state and federal laws to surreptitiously make video or audio recordings—that is, to do so while avoiding detection, such as when a person eavesdrops and records a conversation or meeting. Ministry leaders should avoid any secretively made recordings, whether actual or perceived.

Honor privacy

People have legal rights of privacy to varying degrees regarding their names, likeness, and image. Privacy interests otherwise warrant respect, in practical terms. Consequently, ministry leaders and those who make video and audio recordings should conscientiously avoid recording material (or using recorded material) that could be perceived as invasive or too personal. For example, attendees at a worship service or other live online event may or may not want to let it be known that they (or their children) were present.

To reduce potential privacy issues, avoid any camera panning on the congregation, and do not publish any attendee lists. Give people an opportunity to not be seen or heard—such as through focusing only on the main speaker, giving attendees the opportunity to sit in an area that will not be shown in the video, and making clear that unauthorized recordings are not allowed. Do not allow unauthorized photos either, such as posted through the ministry’s website without proper protocols.

Tip: Make these applicable policy restrictions overt and clear, such as through a verbal announcement (e.g., “no recording allowed”) or written information as part of the ministry activity (e.g., “The Church service is starting in two minutes. Reminder: no individual recording or screenshots are allowed.”)

Use employment-related recordings sparingly and cautiously

Should staff meetings or other employment-related situations be recorded? This could be quite a useful tool, such as for employees who miss a training or other meeting. However, ministry leaders should be very careful about what gets recorded, considering questions like the following: Could such activities be unduly embarrassing, personal, or otherwise not appropriate for recording? Would workers become less candid, knowing that their words will be recorded? How long will or should recorded staff meetings be retained?

In thinking through these challenges, ministry leaders may determine that it is best to just utilize a blanket prohibition against any employment-related recordings. On the other hand, perhaps a limited-purpose policy may be best, such as to record sensitive discussions (e.g., an employee disciplinary conference)—but only upon express consent given by all participants. Such consent could be given at the meeting’s outset, such as with the following introduction: “This meeting is being recorded. Do you consent?”)

What about board and committee meetings?

It may be helpful to record board meetings, other leadership meetings, or even church membership meetings, such as in case of any disagreement over what happened or to help a secretary prepare minutes. Such recording should never become a substitute for written minutes, but rather only serve as an aid.

Additionally, as with staff matters, recording a board meeting may have a “chilling” effect inhibiting robust discussion. Imprudent or inappropriate disclosure could also be quite damaging, such as if confidential information is divulged, and therefore potentially actionable as a legal claim. For these reasons, it may be best to prohibit recording these types of activities, with accompanying announcements as mentioned above and with related prohibitions for “chat” communications.

Policies promotes understanding

Recording ministry programs and other matters could carry a plethora of benefits. But doing so also raises legal risks and practical concerns. If a ministry is going to record any activities, then make sure the ministry leaders likewise address consent, appropriate context, proper usage (including intellectual property rights), record retention, and how to address violations. An ideal way to handle all such matters is through a written policy that promotes clear understanding, provides follow-through steps, and encourages legal compliance and best practices. And then follow the policy!

Sally Wagenmaker, an advisor at large for Church Law & Tax, is a founder and partner of Wagenmaker & Oberly, a law firm serving churches and nonprofits nationwide. Micah Chetta is an associate attorney with Wagenmaker & Oberly.

Should Our Church Agree to Host a COVID-19 Vaccination Clinic?

Key legal considerations to address before offering your facility as an immunization site.

During the reign of Marcus Aurelius, in 165 A.D., a dreadful epidemic swept through the Roman Empire. An estimated one-quarter to one-third of the population died during the 15-year ordeal. Nearly a century later, a second great plague came to Rome. Bishop Dionysius described the events in Alexandria:

At the first onset of the disease, they [pagans] pushed the sufferers away and fled from their dearest, throwing them into the roads before they were dead and treated unburied corpses as dirt, hoping thereby to avert the spread and contagion of the fatal disease; but do what they might, they found it difficult to escape.

The early church made its mark during this period, caring for and nursing the sick. According to one historian, through this “miracle working” of basic nursing, Christians may have reduced the mortality in Rome by as much as two-thirds.

So, it is no surprise that as state and local officials seek help from churches during the COVID-19 pandemic, including using church properties as vaccine administration sites, congregations are again stepping forward. As churches do so, they can take advantage of certain legal immunities and take other precautions to avoid unnecessary legal liability.

“PREP” for action

In 2005, Congress enacted the Public Readiness and Emergency Preparedness (PREP) Act to legally immunize select persons against claims for loss caused by, arising out of, relating to, or resulting from the administration of covered countermeasures, such as vaccines. The Act protects select licensed health professionals who administer vaccines in accordance with standards set by the Advisory Committee on Immunization Practices (ACIP). The Act also protects those who supervise or administer a program for dispensing vaccines when in conformity with the several Declarations under the Act by the Secretary of the Department of Health and Human Services (HHS).

Compliance with the ACIP standards, Declarations, and local public health authority’s guidance is an important aspect of ensuring legal immunity for a church participating as a COVID-19 vaccination site.

Typically, this guidance identifies the persons who are prioritized for inoculation. Adhere to these priorities and avoid the temptation to prioritize others, whether or not family or church members or church leaders.

In addition, take reasonable precautions to facilitate the safe administration of the vaccine. For inoculation sites, this includes removing hazards in the right-of-way, ensuring proper lighting, adhering to US Centers for Disease Control and Prevention (CDC) protocols, and planning for emergencies, such as serious allergic reactions or other vaccination side effects.

The PREP Act applies only to covered countermeasures, such as vaccines, and has no bearing upon other countermeasures, such as social distancing, quarantining, or lockdowns. Damages that are not proximately caused by the administration of the vaccine are not covered by the Act. For instance, the Act may cover an injury sustained by a person who trips in the tent where the vaccine is administered, but not necessarily by a person who trips while heading back to her car after vaccination.

The PREP Act does not provide any immunity with respect to willful misconduct. Also, employment and other claims are not the subject of the PREP Act—just loss caused by the administration or use of the vaccine.

Additional protections

Some states have adopted additional protections against liability for health-care providers (including workers) assisting with the pandemic and, to a lesser extent, organizations that volunteer to serve as immunization sites. Churches may be able to benefit from these protections, too.

Regardless of these protections, churches should still consult with their insurer regarding coverage. Many insurers are now excluding COVID-19 from primary coverage, but some may offer supplemental COVID-19 coverage for a fee. Churches may be able to request a signed release, waiver, and indemnity (hold harmless) from any entity wishing to host a vaccination clinic on the church’s property. Bear in mind, though, that government agencies normally have sovereign immunity, meaning that there will be a statutory limitation on the value of most public indemnity.

Similarly, a church may request signed releases, waivers, and indemnities from individuals who receive vaccinations onsite. Though their enforceability is uncertain depending upon state law, releases should be:

  • conspicuous;
  • unambiguous;
  • exclude intentional or reckless acts; and
  • state the risks of vaccination and the limited remedies available to vaccine recipients under the PREP Act.

Licensed health professionals and others identified as authorized to dispense the vaccine alone should do so. Churches should insist that only such persons inoculate onsite. Malpractice risk arising from inadequate screening, warning, evaluation, inoculating, or monitoring is reduced under the PREP Act, but in an abundance of caution, leaders should consider allowing a third party (such as a local health authority) to inoculate rather than the church itself. By doing so, the church will also avoid handling and potentially compromising the vaccine.

Aiding the greater good

Service to the public generally involves risk. Consider the Christians who confronted the great plagues in Rome. Vaccinating or offering the church as a site for vaccination is no exception, but some combination of the PREP Act, state immunities, insurance, releases, waivers, and indemnities can materially limit a church’s legal liability. Consultation with legal counsel on the front end of the effort can pay dividends while the vaccination effort itself speaks to the public about the relevance of the gospel to a world in pandemic.

Dr. Nathan A. Adams IV is a partner at Holland & Knight. His practice includes representing nonprofit and religious organizations on a variety of matters, including the First Amendment, the ministerial exception, church autonomy, and board and governance issues.

Church Facility Care During Shutdowns and Limited Use

Expert tips to keep your building in good shape and ready when life returns to the new normal.

The pandemic led many churches to close their facilities or move to limited use. This has created both maintenance challenges and opportunities for those who manage the facilities, say the experts interviewed for this article.

To help those who oversee church facilities, we collected the following tips and insights for times when a building is either shutdown or not in full use.

Lower Temperatures—but how low?

Every church wants to save money, and lowering the thermostat during the winter is one way to do just that.

“Our research has shown that temperatures as low as 45°F do not harm the structure or contents of buildings,” says a press release from The Interfaith Coalition on Energy (ICE). Such low temperatures are not harmful to those expensive church pipe organs, claims Andy Rudin, project coordinator for ICE, an organization that seeks to help congregations lower the cost of operating their facilities.

“We surveyed members of the Associated Pipe Organ Builders of America to find that they agree with our low temperature recommendations,” he said.

While lowering the temperatures is not a bad idea, says Pat Hart, executive director of the National Association of Church Facilities Managers (NACFM), he feels that 45 degrees would be too low for his facilities. Along with leading NACFM, Hart also manages a five-building church and Christian school in Everett, Washington.

When any of the buildings he manages are unoccupied, Hart says that “55 degrees is as low I would go.”

Keep the furnace running

Shutting off your HVAC, or turning it way down so it doesn’t periodically run, could create some serious mechanical problems.

“When you fire the furnace back up, you are going to have some significant maintenance issues,” says Hart. He explained that an HVAC is made to be used regularly; extended times when it’s not used can cause fan motors to malfunction, along with a number of other potentially costly problems.

He added that reheating the building would be a big issue—something that would consume a lot of costly energy. If someone walked into a building set at 45 degrees, he explained, they’d need to turn up the heat, forcing the HVAC to expend a lot of energy to reach a comfortable temperature.

Maintain consistent temperatures

It can become an issue if consistent temperatures aren’t maintained, cautions Tim Cool, chief solutions officer for Smart Church Solutions, an organization that assists with various areas related to facilities.

“Humidity and cold are major concerns for spaces that have delicate musical instruments,” Cool explains. “The damage wildly fluctuating space temps can do to a pipe organ or grand piano will negate the cost-benefit of keeping the set-points too low (or high) in a space that houses that type of investment.”

Overall, it’s important to remember that church buildings are conditioned spaces—depending on an HVAC system for heating and cooling.

“Facilities are designed to be conditioned spaces, and most designs assume that it will be conditioned consistently,” Cool stresses.

Avoid frozen pipes and mechanical room breakdowns

Temperatures that are set too low can also lead to frozen pipes that might burst. This could be especially problematic for poorly insulated pipes or pipes that run next to an outside wall.

“In churches heated by circulating water, the property committee should know where all the pipes are, particularly those running through unheated places, like under floors, inside walls and attics,” Rudin advises.

Churches must pay particular attention to the space dedicated to the HVAC, electrical systems, and water systems, Cool says.

“Many mechanical rooms have one or more exterior facing walls. They may not be insulated as well, and they are the entry point for many of the building’s systems,” Cool says. “In climates with below freezing temperatures for multiple days in a row, these spaces can become 15 to 25 degrees colder than the interior of the facility. Temperature-controlled space heaters may be necessary to ensure they do not become too cold.”

Consider installing remote thermostats

The ability to control your building’s thermostat remotely is a very good idea, Hart says. If there needs to be people in a particular part of your building during a shutdown or period of limited use, it’s good to be able to turn up your HVAC and then turn it down when they leave, Hart explains.

Cool of Smart Church Solutions agrees and adds, “This is also a great time to consider investing in communicating thermostats to allow for remote building environment monitoring.”

Keep an eye on your building

Even when your facilities are completely shut down, it’s essential to regularly inspect the building for any issues or potential problems.

Walk-through inspections should be conducted at least once a week for both “operational considerations” and possible “safety or security” issues, Cool recommends. He said night inspections should also be conducted in order to check to see if any lights are out or any other issues that wouldn’t be readily apparent during the day.

Cameras connected to an app are also a good way to check on your building—both inside and out.

“I have 90 cameras and I have access on my phone,” Hart says of his five-building church and school. “I’ll log on to see if it’s snowing and if I need to call a plow company. I have a camera on the roof where we’ve had some wind damage and I keep an eye on that.”

Preventive maintenance and needed repairs

Upkeep during shutdowns and times of limited use is essential, Hart stresses. “You have to have someone focusing on preventative maintenance and not just locking the doors and walking away,” he says.

Opportunities amid the challenges

While the pandemic shutdowns have created many challenges, Hart says it’s also created opportunities for taking care of tasks that are too easily neglected or impossible to do because people are almost always in your building.

“There’s all this preventive maintenance or deferred maintenance that churches don’t do because they don’t have the time” or it’s difficult to schedule certain projects “because of church activities and events,” Hart says. “We’ve had an incredible nine months to go after things we didn’t have time to do before.”

Hart says that an unoccupied building would be a great time to upgrade to energy- and cost-efficient LED lighting. And there’s an added incentive to do so: rebates. Hart adds that many places offer rebates for switching to LED lighting.

Cool agrees that shutdowns or periods of limited use are the best times “to perform any repairs to the parking lot and exterior [or] entrances.” It also affords plenty of time for deep cleaning of carpets, flooring, restrooms, and kitchen areas, he says.

“Now is the time to declutter the facility and remove all extraneous items, clear out closets and clean out mechanical rooms,” Cool recommends. “Broken furniture should be repaired, replaced, or removed.”

As for any unmeet accessibility requirements, Cool says that “now is the time to make that happen. Have a clearly defined accessible route from the parking lot, into the facility, into a restroom, and into the worship space.”

Additionally, Cool says that “upgrading camera and access control is easier when the building is less occupied. He says that this is also a good time for “ensuring all OSHA required items are in place and up-to-date.”

Curtailing theft and vandalism

Hart cites another reason for keeping your property in good shape: churches need to give the appearance that that someone is around. Failure to keep the lawn mown or fix a broken window can open your church up to vandalism and theft.

“We have had school buses vandalized on a holiday,” Hart says. “People realized we weren’t here and our fuel lines had been cut and they’d drained our gas tank.”

Upkeep and checking on your buildings during shutdowns and times of limited use can greatly reduce the chances of having something stolen or your building vandalized, facility experts say.

“You need to maintain an appearance of activity,” Hart stresses.

Avoid costly “surprises”

“The churches I know that shutdown completely are the ones I worry about having difficulties with systems and breakdowns,” NACFM’s Hart says. “You can’t shutter your building.”

If you do, he warns, you might find some unfortunate surprises when you return—such as serious and costly water damage due to a water pipe that had burst.

But if you’re conducting regular facility inspections and doing any needed repairs, you’ll discover relatively minor issues before they become major—and costly—disasters.

Adding Emergency Provisions to Your Bylaws

How adopting these provisions allows for legally sound virtual meetings.

In 2020, the United States experienced a pandemic that shut down the country and limited physical gatherings. These lockdowns prohibited in-person meetings, including religious organization’s board and committee meetings. Churches with congregational governance could not conduct an in-person business meeting. Suddenly, the religious organization could not follow its usual governance model.

Farsighted religious organizations planned for this pandemic by including the following in their governing documents: 1) they authorized “electronic meetings”; 2) assuming the state nonprofit corporation law allows for electronic meetings, the bylaws included conference calls, video conferencing, electronic message boards, and electronic voting via the internet.

Two key emergency provisions

Churches that have not already done so would be wise to add the following two provisions to their own bylaws, to the extent allowed by their state’s law.

Meeting by electronic means

The corporation may hold a meeting by any electronic medium in which all persons participating in the meeting can speak and hear each other. The notice of a meeting by electronic means must state the meeting will be held by electronic means (including the directions to participate) and all other matters required to be included in the notice. Participation of a person in an electronic meeting constitutes the presence of that person at the meeting.

Action by consent without meeting

Any action required or permitted to be taken by the members, board of directors or committees may be taken without a meeting and with the same force and effect as an in-person meeting. Members, members of the board of directors, and committees must return the consents to the secretary. Such consent may be given individually or collectively to the secretary in writing, fax, via a secure website, or electronic mail. The action is adopted if the requisite number of consents is submitted to the secretary to approve the action, assuming all members, all directors, or committee members voted.

Emergency authorization by state statute

Frequently, state nonprofit corporation statutes authorize the religious organization to include provisions in the bylaws that become effective in an emergency. The state law will define when an emergency exists and what actions may be authorized during the emergency. A disaster declared by the President frequently allows the emergency provisions to become effective and remain effective as long as the emergency exists. Here is a sample under Texas law:

Emergency Powers. An “emergency” exists for this section if the Board of Directors’ quorum cannot readily be obtained because of some catastrophic event. If an emergency exists, the Board of Directors may: (i) modify lines of succession to accommodate the incapacity of any Director, officer, employee or agent; and (ii) relocate the principal office, designate alternative principal offices or regional office, or authorize officers to do so. During an emergency, a notice of a meeting of the Board of Directors only needs to be given to those Directors whom it is practicable, including Internet website, email, publication, or radio. One or more Corporation officers present at a meeting of the Board of Directors may be deemed Directors for the meeting, in order of rank and within the same rank and order of seniority, as necessary to achieve a quorum. Corporate action taken in good faith during an emergency binds the Corporation and may not be the basis for imposing liability on any Director, officer, employee, or agent of the Corporation on the ground that the action was not authorized. The Board of Directors may also adopt emergency bylaws, subject to amendments or repeal by the full Board of Directors, which may include provisions necessary for managing the Corporation during an emergency including; (i) procedures for calling a meeting of the Board of Directors; (ii) quorum requirements for the meeting; and (iii) designation of additional or substitute Directors. The emergency bylaws shall remain in effect during the emergency and shall be revoked after the Board of Directors has deemed that the emergency has ended.

Check to see if your state law contains such a statute.

Adopting the two provisions

Churches will need to research whether these provisions are authorized by their state’s nonprofit corporation statute. These provisions may need to be modified to fit the state law requirements. If authorized, churches will need to amend their bylaws in the manner prescribed by the existing bylaws or state nonprofit corporation statute.

For congregationally lead churches, the members usually must approve bylaws amendments in a properly noticed and called in-person meeting. For board governed churches without members, the board of directors must approve the bylaws amendments in a properly noticed and called in-person meeting.

In many states, a majority vote is required to amend the bylaws but some state laws and bylaws require a two-thirds vote to approve the bylaws amendments. If the government authorities are prohibiting in-person meetings, then the amendments will have to wait until an in-person meeting can be convened.

Frank Sommerville is a both a CPA and attorney, and a longtime Editorial Advisor for Church Law & Tax.

Temporary Relief for Valuing Personal Use of Church-Owned Automobiles

Taking advantage of this relief affects the amount reported on Form W-2.

On January 4, 2021, the IRS released Notice 2021-7, which provides unique and temporary flexibility regarding the valuation of employees’ personal use of employer-provided automobiles—including church-owned vehicles.

Specifically, the IRS Notice provides temporary relief for employers using the automobile lease valuation rule for 2020 by allowing employers in certain circumstances to switch to the vehicle cents-per-mile rule as of March 13, 2020. Depending upon the specific facts and circumstances surrounding employees’ personal use of a church’s automobiles, this flexibility could provide tax savings to the church and its employees for 2020.

The Notice states, in part:

As a result of the pandemic, many employers suspended business operations or implemented telework arrangements for employees. Consequently, employers have indicated that business and personal use of employer-provided automobiles has been reduced for employees. However, due to the way in which the value of an employee’s personal use of an employer-provided automobile is computed using the automobile lease valuation rule, . . . employers have noted a resulting increase in the lease value required to be included in an employee’s income for 2020 compared to prior years. In contrast, determining the value of an employee’s personal use of an employer-provided automobile using the vehicle cents-per-mile valuation rule results in income inclusion of only the value that relates to actual personal use, thereby providing a more accurate reflection of the employee’s income in these circumstances.

Taking advantage of this temporary option will affect the amount of taxable wages reported on 2020 Forms W-2 for employees who use a church-provided vehicle partially for business and partially for personal purposes. As many employers are finalizing 2020 payroll information now, we recommend that churches immediately evaluate whether they and their employees may benefit from the flexibility this notice offers.

Brief Background

If a church provides an employee with an automobile that is available to the employee for personal use, the value of the personal use must generally be included in the employee’s taxable wages and reported on Form W-2.

As further described in our whitepaper, there are several valuation rules that a church may use to calculate the value of the personal use of church-provided automobiles, including the “general valuation rule” (based on a facts and circumstances determination); the “vehicle cents-per-mile valuation rule”; the “automobile lease valuation rule”; and the “commuting valuation rule.” Historically, the automobile lease valuation rule has been the most common method used by our clients because of certain historical limitations related to the use of the commuting valuation rule and the vehicle cents-per-mile valuation rule, as well as the subjectivity of the general valuation rule.

However, in 2018, the Tax Cuts and Jobs Act (TCJA) made a change to the requirements necessary to use the vehicle cents-per-mile valuation method, making the method more widely usable. The cents-per-mile valuation rule must typically be adopted for a vehicle as of the first day on which the vehicle is used by an employee for personal use.

Additionally, federal tax regulations require that the valuation methodology chosen by an employer must be used consistently. Employers were not generally able to switch immediately to the cents-per-mile valuation method after the passage of the TCJA on vehicles for which they were already using the annual lease valuation rule. They could generally use the cents-per-mile rule with respect to new vehicles placed in service on or after January 1, 2018. (Other specific criteria apply for using the cents-per-mile valuation rule including, but not limited to, a maximum value for the automobile on the first date that it is made available to an employee for personal use. (See our whitepaper for more details.)

Potential Tax Savings

In certain situations, the vehicle cents-per-mile valuation rule may result in a lower valuation than the automobile lease valuation rule—resulting in potential tax savings for both the employer and employee. For much of 2020, in situations where employees were supplied with employer-provided automobiles that were used very little for business, the valuation of personal use under the cents-per-mile valuation method may be significantly lower. (This lower valuation may also apply for part of 2021.)

Notice 2021-7 allows an employer that has historically utilized the annual lease valuation rule to utilize the vehicle cents-per-mile valuation method for qualifying vehicles beginning March 13, 2020. (They must pro-rate the personal use value under the annual lease value method for the period from January 1, 2020 through March 12, 2020.) Employers may choose to revert back to the annual lease valuation rule for 2021 or continue using the vehicle cents-per-mile valuation method in 2021 (assuming the arrangement otherwise meets the requirements for valuation under that method). The method chosen for 2021 must generally be used for all subsequent years so long as the arrangement continues to qualify for valuation under that method.

This information was adapted from an article that originally appeared in the Batts Morrison Wales & Lee Nonprofit Special Alert e-newsletter. Used with permission.

Kaylyn Varnum, CPA, is a partner and the assistant national director for tax services at Batts Morrison Wales & Lee (BMWL); Michele Wales, CPA, is a partner and the national director for tax services at BMWL; Michael (Mike) E. Batts, CPA, is the managing partner of BMWL. BMWL is an accounting firm dedicated exclusively to serving nonprofit organizations across the United States.

Most Churches Remain Optimistic About Their Financial Outlook in the Coming Months

Still, around a third of all churches express uncertainty or pessimism as they look toward 2021.

Cash donations to churches from January through September of this year were higher or holding steady for 58 percent of all churches when compared to giving in same period in 2019, according to a study of giving during the pandemic recently released by the Evangelical Council for Financial Accountability (ECFA).

This finding tracks closely with the giving trends noted in two studies conducted this past summer by the National Association of Evangelicals and the Lake Institute on Faith and Giving. The ECFA study surveyed 559 churches, along with 730 nonprofits, including both ECFA members and nonmembers, and was conducted from late October to early November.

This positive trend in giving is rather remarkable when considering that many churches had not been holding in-person gatherings due to the pandemic and the overall economy had been taking a beating and the unemployment rate continued to rise. On top of that, two-thirds of all churches in the study were actually optimistic about their financial outlook for 2021.

“Despite incredible challenges, 2020 has seen remarkable resiliency and significant forward motion among ECFA members and other like-minded ministries,” says ECFA’s vice president of research and equipping Warren Bird in the study’s report. “We were impressed by their strong optimism that God will continue to provide the funding needed to fuel gospel-motivated ministry.”

Along with giving, the study also covered a number of key areas related to church finances during the pandemic. Overall, the various findings in the ECFA study were similar for churches with the largest annual income ($10 million or higher) and the smallest annual income (under $500,000).

Staffing levels held their own

When it came to staffing during the third quarter of the year, 16 percent of churches reported a staff increase, with 67 percent reporting they were keeping their current staff size and 17 percent said they had to reduce staff. As they anticipated their fourth quarter, 9 percent of churches expected staff reductions, with 77 percent saying they would maintain current levels and 14 percent planning to add staff.

A surprising and hopeful finding was that plans in 2021 to increase staff bumped up to 28 percent, with 57 percent keeping staffing levels the same. Still, 15 percent were anticipating a reduction in staff.

Non-staff expense adjustments and positive plans for 2021

As the third quarter books closed, 36 percent of churches reported they had either increased or maintained non-staff expenses, while 64 percent had either postponed or reduced budgeted expenses (e.g., expanding a program or facility) or some type of service they would normally provide. Then, looking forward to the fourth quarter of the year, 53 percent of churches sought to increase or maintain such expenses while 47 percent anticipated either postponing or reducing such expenses.

However, the outlook for 2021 appeared brighter for 63 percent of churches as they anticipated either increasing spending or maintaining current spending; on the downside, 37 percent made plans to either postpone or reduce expenses.

ECFA’s Bird believes, however, these various adjustments to non-staff expenses are positive signs for many churches.

“Churches largely retained their staff, but cut or postponed other expenses during the summer,” Bird told Church Law & Tax. Additionally, Bird said that many pastors have told him that “with their facilities closed or minimally used for many months, their operational costs have been lower. Thus, cutting and postponing is not always something they were forced to do.”

Further, “the 64 percent that cut or postponed were speaking only of July through September, while 47 percent say they’ll cut or postpone for October through December, and 37 percent say that they’ll cut or postpone in 2021. That’s movement in a healthy direction.”

What about cash reserves?

Of those churches surveyed, 81 percent reported their cash reserves weren’t touched during the third quarter of the year. As those churches looked forward to 2021, however, with the continuing effects of the pandemic undoubtedly in mind, a little over half (54 percent) believed their reserves would still go untouched, with 41 percent saying they would most likely use some and 5 percent said they would use all of their cash reserves.

A good number still struggle

While two-thirds of those churches surveyed expressed optimism, a third were either uncertain or pessimistic about revenue going forward. And while 58 percent said donations were the same or higher from January through September, 42 percent reported giving was lower during that time period.

Regarding those struggling churches, ECFA’s Bird offered these insights:

Our research shows that those who were financially precarious going into the pandemic have especially felt it hard. Often the financial challenges are symptoms of underlying issues that can be addressed in healthy ways, such as clarifying God’s vision for this season in the life of the church, prayerfully discerning realistic steps to implement the vision, empowering and supporting more lay leaders, and mobilizing more people in the congregation for ministry.

Those churches that end up unable to weather this ongoing financial storm, Bird said:

A small percentage of churches may decide that they cannot make a comeback after the pandemic. Rather than closing, they might consider a merger. Church mergers are not only on the rise, but a much higher percentage of them are finding a whole new chapter of ministry as they partner with another church to begin the cycle of new life in Christ all over again.

Bottom line: In the coming months a number of churches will most likely be forced to make difficult decisions as the pandemic lingers into the early months of the new year.

Recommended Reading

Protecting Children and Youth

Learn how to help keep kids safe, the right way to respond to allegations of abuse, and legal requirements related to reporting and screening.

One of the perennial top reasons churches go to court each year is an allegation of abuse raised against a church volunteer, staff member, or pastor. Even with increased public outrage and calls for change in recent years, both inside and outside of the church community, the problem persists.

The problem also continues to evolve in new and concerning ways that not only jeopardize the well-being of children and youth (such as increased vulnerabilities through expanded uses of technology during the pandemic), but also pose existential threats to local houses of worship. This past summer, for instance, attorney Richard Hammar noted a federal appellate court’s recent affirmation of a $21.7 million verdict against a teacher and private Jewish school.

And developments on other related fronts exist, too. Many states are extending statutes of limitation for reporting cases. Courts also continue to reshape and redefine the clergy-penitent privilege, and what it means for reporting suspected or known abuse, as well.

Church Law & Tax remains deeply committed to helping church leaders navigate this critical issue and curated this collection of articles and resources to help you protect children and youth in your church.

Recommended Reading

Encouraging Generosity

Peruse this reading list for tips on encouraging generosity among your congregation during these tough times.

Many churches count on a “good” December to meet the annual budget. In this time of the COVID-19 pandemic, when nothing feels normal, special challenges confront church leaders. Surprisingly, many of the articles on Church Law & Tax that address generous giving apply to this unpredictable time. Our editors have sorted through the best to create this collection of articles and resources to help you encourage giving now and in the months to come.

Advantage Member Exclusive

Tripping Points of Pastoral Compensation

On-Demand Webinar: 7 common mistakes churches make when planning and executing church compensation.

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Editor’s Note. This video is part of the Advantage Membership. Learn more on how to become an Advantage Member or upgrade your membership.

When it comes to handling pastoral compensation, the details can make all the difference.

From navigating the housing allowance and its tax effects to understanding the unique issues involved in planning for retirement, a minister’s classification seems to bring confusion in the world of compensation planning. Any failure to follow specific rules can change the taxation of various components in a compensation package—likewise, the use of various components may have unintended tax consequences.

CPA and Church Law & Tax senior editorial advisor Elaine Sommerville, provides church leaders with a valuable review of the details most essential to building a solid compensation package for ministerial team members.

Download the presentation slides here.

Elaine L. Sommerville is licensed as a certified public accountant by the State of Texas. She has worked in public accounting since 1985.

Recommended Reading

Recent US Supreme Court Cases and the Church

The latest updates and insights on the decisions that affect your congregation.

There have been a number of US Supreme Court rulings since 2017 that are of interest to churches. Church Law & Tax has followed these cases closely, developing the following articles:

Recommended Reading

How to Prevent Sexual Harassment in Your Church

New research confirms it does happen in ministry and the trend isn’t changing.

The #ChurchToo movement has unmasked some uncomfortable truths over the past three years, most especially on the topic of sexual harassment in church offices. Allegations of misconduct have surfaced nationwide, some involving high-profile pastors, and countless more revealing troubling patterns across congregations of all types and sizes.

Sexual harassment is a serious matter. Its legal definition reveals this issue’s insidious nature, demonstrating the way it subjects a person to unwanted conduct or conditions their employment on acquiescing to inappropriate demands or requests. More importantly, at a basic, fundamental level, sexual harassment strikes at the very heart of the gospel, attempting to rob the dignity of a person made in the image of God.

There is simply no place for it in church and ministry settings. With that in mind, we’ve compiled resources, listed below, to help you to both address and prevent it.

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Rethinking Your Church’s Budgeting Process for 2021

On-Demand Webinar: Guidance on how church leaders can adjust their current budgeting processes to adapt to changes caused by the pandemic.

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Editor’s Note. This video is part of the Advantage Membership. Learn more on how to become an Advantage Member or upgrade your membership.

To say that recent and current social and cultural developments have significantly affected church budgets would be a dramatic understatement. In fact, radical and ongoing societal developments have rendered the regular, annual church budget obsolete and irrelevant for 2020 and beyond.

So, how do church leaders address budgeting for the future in such an environment?

In this webinar offered exclusively to Church Law & Tax Advantage Members, CPA and Church Law & Tax Senior Editorial Advisor Michael Batts discusses these topics and challenges church leaders to completely overhaul their areas of financial focus.

Additional answers to your questions

During the live webinar, attendees submitted a number of questions. CPA Michael Batts wasn’t able to answer all the questions during the event, so he graciously agreed to answer them in this bonus PDF.

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Why Churches Should Use Caution When Collaborating with Developers

The cautions churches should take when collaborating with developers to avoid costly legal battles over property.


Editor’s Note. This article is part of the Advantage Membership. Learn more on how to become an Advantage Member or upgrade your membership.

Many churches today are asset rich but cash constrained. Selling or developing church property has become an interesting and helpful process to create more cash flow for some churches, but it’s important to be aware of the many details—and potential pitfalls—involved with these transactions.

Sales have increased

As of August 2019, more than 6,800 religious buildings had sold in the preceding five years and more than 1,400 were for sale in the U.S., according to the commercial real estate database CoStar. The increase in property sales during this period was attributed to two factors: declining church membership and the rising costs related to the maintenance of aging and declining facilities. The pressure to sell or develop has apparently only increased for some churches.

“Two and a half years ago, we decided that upkeep of [our] building and the age factor of it was way too much for a congregation of about a hundred people to keep up with long term,” pastor David Lodwig of River Valley Church in Missoula, Montana, told Missoulacurrent.com. In December of 2019, River Valley Church sold its property and is working on securing a new one.

There are some churches that are okay with selling their property outright and seeking a new place to worship. They view such a transaction as an opportunity to downsize and have more manageable property expenses.

Other churches will only sell a portion of the space and retain the rest. A church can structure a deal with a developer that includes the developer paying for them to rent space elsewhere while that portion of their property is under construction.

There are pros and cons to either approach, depending on the church and what its infrastructure is capable of handling. This is an important note. A church has to think through what it is capable of maintaining on its own, or once the project is completed and new responsibilities emerge with the new space.

The remainder of this article will focus on the development-based approach, since it is a less common—but increasingly popular—trend among churches.

Trends in developing property

While selling prime real estate is one option for addressing cash shortfalls, many turn to property developers and collaborative projects. Second Canaan Baptist in the New York City borough of Manhattan chose to replace its former worship facility with a new church building and residential condominiums available for purchase that include finishes like walnut vanities. The church’s pastor told The New York Times that “if you don’t undertake projects like this, chances are the ministry will fold, because the continuing costs of maintaining an old building will sink you.”

The prospect of a church working with a developer or an investment company—or even the city—can seem like an ideal solution to counter aging facilities and cash-strapped congregations. However, negative consequences can result if proper steps are not taken.

Two troubling examples

In August of 2019, St. Luke’s Baptist Church in Harlem asked the state’s highest court to intervene in a deal with a developer that the church said “left it at the precipice of shuttering its doors for good,” according to a Crain’s New York Business article. The church sued the developer and its president, accusing them of using their real estate expertise to “take advantage of a church whose unsuspecting nature and charitable parishioners left it vulnerable to the defendants’ predatory practices.”

The church entered into an agreement with the developer in 2014 expecting a new sanctuary as part of the developer’s construction of a residential building on the church’s property. The terms of the deal included a provision that if the new church was not completed by 2017, the developer would give the church $21,000 a month for each month beyond the deadline.

By August of 2019, the developer was two years past the deadline—and the developer refused to make the monthly payments. The church also asserted in its complaint that the developer had colluded with the church’s attorney at the time to enter a deal that was not to the church’s benefit. This lawyer had previously worked with the developer on another church deal and ultimately pleaded guilty to stealing $600,000 from that other church.

More recently, as reported by the New York Daily News, Gospel Mission Baptist Church, also in Harlem, entered into a deal with a developer whereby the development company would own 80 percent of the building and the church would own the remaining 20 percent. There would be no expense to members, the church would receive a new sanctuary, and the developer would build and sell condos located above the church’s space.

In the agreement between the parties, the church was listed as a commercial entity and not a religious organization, so it was required to pay condominium fees as a unit of the condo. This important requirement in the contract was missed by the church, and it was stuck with ongoing maintenance fees that accrued and exceeded $270,000.

Additionally, the building was sold in a foreclosure proceeding unbeknownst to the church. The church was evicted, despite waging a legal battle for a year, and on January 19, 2020, it held its last service at the location.

Thankfully, Gospel Mission was able to join with another congregation to continue its ministry operations at another location. However, the church expected to lose 70 percent of its members due to the distance of the relocation.

Such unfortunate outcomes could most likely have been avoided with advanced planning and preparation, the assembly of the right team, and the proper structuring of the development agreement. Here’s how these steps can help churches avoid the types of unfortunate outcomes other congregations have experienced.

Advanced planning and preparation

Before pursuing a development deal, church leaders should consider the following six questions:

  • What are the church’s goals—and what is the quantitative value of its property? What is the church looking to gain from a development deal? What can it realistically obtain through such a deal? There are factors that will determine the type of deal that can be made. Location, the size of the property, and zoning restrictions are key components for understanding which goals are realistic and what type of value the property offers.
  • What documents are required and who needs to be involved? The church must have in its possession all of its governing documents, including the articles of incorporation, the bylaws, the property deed, and any other documents required under the specific denomination and/or governing body of the church. The formal process of approving a sales transaction—whether by the church membership or the church’s board or governing body—also must be identified. These details will be required for the deal to go through. All parties and documents necessary to the transaction need to be identified and duly prepared well before a deal is signed and ready to close.
  • Who owns the church property? There must be clarity as to the ownership status of the church property. Does the church fully own the property and therefore have full authority to sell it—or portions of it—for development purposes? Remember to follow any requirements established by the overarching denomination regarding the sale of property by an individual church.
  • What are the tax ramifications? The church must determine any tax-related implications triggered by the specifics of the arrangement. Generally, these deals do not jeopardize the tax-exempt status of the church. However, if the deal provides the church with new space that is a rental property or a community space used to generate unrelated business income, then tax considerations apply. The church must consult a qualified tax attorney to evaluate the opportunity and all of its implications.
  • What are the insurance considerations? The church must weigh the types of risk management concerns that a potential development agreement raises. Is special insurance coverage now necessary? Will the church insurer even sign off on something like this? How much additional cost in insurance premiums will the church face?
  • What restrictions, if any, does the church face with respect to a lender? If the property is paid off, this isn’t a concern. But if the church currently borrows money, or needs to borrow money for the development project, it needs to verify how the deal affects current obligations and triggers new ones.

Assemble the right team

It is imperative that the church put together a proper team to deal with the property development opportunity. The ideal team, which can involve staff members who fulfill these functions or volunteers with backgrounds in these subjects, should consist of:

  • the pastor;
  • a lawyer, preferably with real estate, church law, and/or general business experience;
  • a tax attorney;
  • a person with a construction and/or real estate background; and
  • a person with financial acumen, such as a CPA or financial officer.

It bears mention that in line with the church’s 501(c)(3) status and IRS requirements, no member of this team should have a financial/pecuniary gain in this transaction.

The pastor is a critical part of articulating the vision of the church for the project. This is important in making sure that the goals of the church remain the focal point.

The attorney ensures that the deal is carefully vetted and that it reflects the terms that the church has postulated.

The team member with construction and/or real estate experience is invaluable and can be given the role of the owner’s representative. This person will interact with the developer throughout the process and manage the day-to-day details of the project for the church.

The finance person should possess the ability to craft a financial deal offering the most benefits to the church. This person has to consider the current financial state of the church, any current or potential obligations to a lender, and the church’s ability to sustain any long-term obligations derived from the development project. There are likely lending and/or banking considerations that need to be addressed, including conversations with, and approvals from, a current or prospective lender. The finance person will be instrumental in this process.

A properly structured agreement

There are many considerations to go over before the final agreement is made. For instance, does the deal require giving up a portion of ownership in the property? Does it require the church to front certain costs or absorb new ongoing costs? Does it require the church to share a percentage of revenues forever? Questions like these must be answered before a church enters into a development opportunity.

The deal also has to be one that the church is comfortable with many years down the line. Despite any financials pressures, a church should not enter into a deal solely focused on the immediacy of the projected financial windfall. They must be forward thinking. While the deal has to be contemplated from many vantage points, the church must be mainly concerned with how the deal does or doesn’t track with its mission and core values.

The church can also place conditions on the developer to protect its interests. Such conditions may include a timeline that the developer must meet, with built-in financial penalties for missing any established deadlines and benchmarks. The church can also insist on maintaining the structural and historical integrity of the property, especially where there is some significance for the church.

Proceed with caution

Property development projects have enabled some churches to achieve a financial turnaround when they otherwise might have closed their doors. Unfortunately, development projects have also caused financial ruin for other churches. The difference lies in the advanced planning and preparation, the team assembled, and the structure of the deal. These factors, when properly utilized and executed, can breathe both life and financial health into a struggling church.

Gisele Kalonzo-Douglas is an attorney, risk manager, strategic planning consultant, and crisis management professional with almost 20 years' experience.
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