Section 8F: Annual reports of public charities; financial statements; fees; penalties; enforcement
Section 8F. The trustee or trustees or the governing board of every public charity shall annually, at a time to be determined by the director, file with the division a written report for its last preceding fiscal year. Such report shall be filed on forms prescribed by the director and shall contain such financial and other information as the director may require. A public charity which is required by law to file accounts in a probate court of the commonwealth may file a copy of such account for any year with the division in lieu of the annual report, but each such public charity shall supply to the director, upon request, such additional information as the director may require.
A public charity, other than one which files its annual probate account with the division in lieu of the annual report, which received more than $200,000 in gross support and revenue during the fiscal year covered by its report must submit a complete audited financial statement together with its annual report. For purposes of this section, gross support and revenue shall not include any gains or losses from the sale of a capital asset. The audited financial statement shall be prepared in accordance with such generally accepted accounting principles and reporting practices as may from time to time be prescribed by the American Institute of Certified Public Accountants, or its successor organization, and shall be examined by an independent certified public accountant in accordance with generally accepted auditing standards for the purpose of expressing an opinion thereon. A public charity which received not more than $500,000 in gross support and revenue during the fiscal year covered by its report may in lieu of an audited financial statement submit a financial statement accompanied by an independent certified public accountant's review report as that report is defined by the American Institute of Certified Public Accountants. The director may, by regulation, exempt certain types or classes of organizations from the audit or review report requirement or from completing any portions of the annual report if the director determines that such exemption would be in the public interest.
The annual reports and any other documents prescribed by the director shall be signed by an authorized officer of the public charity and shall be verified under oath. For each report, a filing fee shall be paid to the division at the time of the filing in the following amount, based on the gross support and revenue received during the fiscal year covered by the report, as follows: (a) thirty-five dollars, if not more than one hundred thousand dollars; (b) seventy dollars, if more than one hundred thousand dollars but not more than two hundred and fifty thousand dollars; (c) one hundred and twenty-five dollars, if more than two hundred and fifty thousand dollars but not more than five hundred thousand dollars; (d) two hundred and fifty dollars, if more than five hundred thousand dollars but not more than $1,000,000; (e) $500, if more than $1,000,000 but not more than $10,000,000; (f) $1,000, if more than $10,000,000 but not more than $100,000,000; (g) $2,000, if more than $100,000,000. In the event that any public charity shall fail to file a report required hereunder, the division may bring an action to restrain the charity from transacting any business in the commonwealth or may take such other action as may be appropriate to compel compliance with the provisions of this section.
This section shall not apply to any property held for any religious purpose by any public charity, incorporated or unincorporated.
If a public charity fails to file a written report for any year, the director shall notify the delinquent public charity, or the responsible officer or agent of the public charity, by mailing a notice thereof by United States certified or registered mail, or by any other courier or service found by the director to be sufficiently reliable to generate written documentation of mailing, to its last known address or that of the responsible officer or agent. The notice mailed by the director shall be considered a sufficient notice, and a certificate of the person mailing the notice that it has been mailed in accordance with this section, together with a post office, courier or service receipt of the mailing, shall be considered prima facie evidence thereof and shall be admissible in any court of the commonwealth as to the facts contained therein. Refusal of delivery of the mailing shall not be a defense to the receipt of the notice.
If a complete report is not filed within 30 days of the day the notice is mailed, the director may assess a civil penalty against the public charity unless the failure to file is for good cause. Notice of the assessment of the penalty shall be mailed to the public charity or responsible officer or agent in the manner provided above for the initial notice. The civil penalty shall be in an amount of up to $50 per day for each day subsequent to the end of the 30 day period until a complete report is filed; provided, however, that the maximum aggregate penalty assessed with respect to any report shall not be greater than $10,000.
A public charity aggrieved by the imposition of a civil penalty under this section may bring a civil action in the nature of certiorari under section 4 of chapter 249; provided, however, that the action shall be commenced within 60 days of the date of the notice of the civil penalty. If a public charity fails to pay any civil penalty provided herein, the attorney general may initiate a civil action in the superior court to enforce the penalty or to obtain any other relief so required. The action by the attorney general may be initiated, if no action is commenced under section 4 of chapter 249, upon the expiration of the 60 day period to bring such action or, if an action is commenced under said section 4 of said chapter 249, the issuance of a final judicial determination thereon.
The penalty that may be imposed on the public charity as provided herein may be assessed against a responsible officer or agent of the public charity upon a finding by the director that the responsible officer or agent has the authority to cause the public charity to comply with the requirements of this section but has neglected or refused to do so after notice and demand. The president and treasurer of the public charity, and any person authorized in its by-laws, operating agreement, articles of organization, charter, organizational documents or by resolution of its board of trustees or directors to sign documents or filings on behalf of the public charity, shall be rebuttably presumed to have the authority to cause the public charity to comply with the requirements of this section.
Before the assessment, the director shall provide the responsible officer or agent with notice of the director's intention to find the person to be a responsible officer or agent and to assess that person the penalties provided for hereunder. Notice shall be delivered by United States certified or registered mail or by any other courier or service found by the director to be sufficiently reliable to generate written documentation of mailing, to the last known address of the person as set forth in any filing made by the public charity or shown in its records, or as otherwise determined by the director. The notice shall be considered a sufficient notice of the division's intention to assess the penalties and a certificate of the person mailing the notice that it has been mailed in accordance with this section, together with a post office, service or courier receipt of the mailing, shall be considered prima facie evidence thereof and shall be admissible in any court of the commonwealth as to the facts contained therein. Refusal of delivery of that mailing shall not be a defense to the receipt of the notice.
The person may, within 60 days from the date of the notice, request an opportunity to be heard by the division to present reasons why he should not be determined to be a responsible officer or agent within the meaning of this section. Upon a finding by the division that the person is a responsible officer or agent and has failed, without good cause, to cause the public charity to comply with the filing requirements of this section, a civil penalty that may be assessed against the public charity may, in the alternative, be assessed against that person and that person shall not be entitled to indemnification or reimbursement by or from the public charity for the civil penalty.
A person aggrieved by the imposition of a civil penalty under this section may bring a civil action in the nature of certiorari under section 4 of chapter 249; provided, however, that the action shall be commenced within 60 days of the date of the notice of the civil penalty. If a person fails to pay the civil penalty provided herein, the attorney general may initiate a civil action in the superior court to enforce the penalty or to obtain any other relief so required. The action by the attorney general may be initiated, if no action is commenced under section 4 of chapter 249, upon the expiration of the 60 day period to bring the action or, if an action is commenced under said section 4 of said chapter 249, the issuance of a final judicial determination thereon.
A public charity, or an officer or agent of a public charity, who willfully makes, executes or files a report false in any material representation shall be punished by a fine of not more than $5,000 or by imprisonment for not more than 1 year, or by both such fine and imprisonment.