GUIDANCE FOR SMALL BUSINESSES AND NOT-FOR-PROFIT ORGANIZATIONS
The Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (the “Economic Aid Act”) was signed into law on December 27, 2020 as part of the Coronavirus Response and Relief Supplemental Appropriations Act, 2021 (“2021 Appropriations Act”). The Economic Aid Act authorizes the Small Business Administration (“SBA”) to disburse an additional $284 billion of funds through the second temporary loan program called the Paycheck Protection Program Second Draw Loans (“PPP Second Draw Program”). Specifically, the PPP Second Draw Program allows borrowers that previously received a loan through the Paycheck Protection Program (“PPP First Draw Program”) (see here for an article dated April 4, 2020 for information on the PPP First Draw Program), to apply for a second loan (“Second Draw PPP Loans”). The intent of the PPP Second Draw Program is to provide additional relief to hard-hit small businesses, including qualified not-for-profit organizations.
The below will provide a high-level understanding of the PPP Second Draw Program.
- Eligible Entities: Eligible entities include businesses, certain not-for-profit organizations (including religious organizations), housing cooperatives, veterans’ organizations, tribal businesses, self-employed individuals, sole proprietors, independent contractors, and small agricultural co-operatives.[i] Congress has specifically included language clarifying that religious organizations are eligible to apply.[ii]
- General Requirements for Eligible Entities[iii]:
- Employs 300 or fewer employees per physical location;
- Experienced a reduction in gross receipts of at least 25% in the first, second or third quarter in 2020 compared to the same quarter in 2019. Borrowers may also utilize the gross receipts from the fourth quarter of 2020 (not-for-profit and veterans’ organizations may utilize gross receipts to calculate their revenue loss standard);
- Received a loan under the PPP First Draw Program; and
- Used or will use the full amount of the loan pursuant to the PPP First Draw Program on or before the Second Draw PPP Loan is disbursed.
- Maximum Loan Amount: $2 million which includes the loan amount received and not paid back under the PPP First Draw Program.[iv]
- Calculation of Loan Amount: Average monthly payroll costs for 2019 or 12 consecutive months prior to the loan application date multiplied by a factor of 2.5.[v] Compensation is capped at $100,000 per employee annually. For more information on the definition of “payroll”, see our article dated April 4, 2020 titled Economic Relief for Non-Profit Organizations Through the Paycheck Protection Program.
- Timeline: From January 13, 2021 (depending on the application process for each authorized lender) through March 31, 2021.[vi] Borrowers should apply as soon as possible because the funds will likely be depleted prior to March 31, 2021.
- Eligible Loan Expenses:
- Sixty Percent (60%) of the loan to be used on payroll costs over the covered period (between eight (8) and twenty-four (24) weeks)[vii];
- Covered expenses set forth in the guidelines for the PPP First Draw Program (payroll costs, mortgage payments, rental payments, utility payments)[viii]; and
- Additional covered expenses include but are not limited to: (a) payment of software or cloud computing services or other human resources needs and accounting needs. (i.e., purchase of Zoom, WebEx, Amazon Cloud, QuickBooks, etc.), (b) property damages costs from disturbance occurring in 2020 that are not covered by insurance, and (c) expenses for the adaptation of the entity to comply with CDC or other governmental regulations to be COVID-19 compliant.[ix]
- Loan Terms: Loan terms for Second Draw PPP Loans are generally the same as the terms applicable to PPP First Draw Program.[x] These terms include the following:
- Guaranteed 100% by the SBA;
- No collateral required;
- No personal guarantees required;
- The interest rate is 1%, calculated on a non-compounding, non-adjustable basis;
- The maturity is five (5) years; and
- Lenders may make such loans under delegated authority from the SBA and rely on borrower’s certifications to determine eligibility and use of loan proceeds.
- Loan Application: A sample application can be found through the SBA’s website here.[xi] However, it is important for borrowers to review the application and documentation required by their individual lender before submitting a loan application.
- Loan Forgiveness:
- Loans $150,000.00 or less: Borrowers submit a simplified one page certification attesting that the entity suffered the required revenue loss and has complied with PPP loan regulations for the use of the loan proceeds.[xii] However, borrowers are required to retain relevant employment records for four (4) years and other records for three (3) years.[xiii]
- Loans greater than $150,000.00: Borrowers will need to submit the same forgiveness application required under the PPP First Draw Program and documentation adequate to establish that the borrower experienced a revenue reduction of 25% or greater in 2020 relative to 2019.[xiv]
- Limitation on Number of Loans. An eligible borrower may only receive one (1) Second Draw PPP Loan.[xv]
GUIDANCE FOR FIRST TIME BORROWERS
The PPP First Draw Program has reopened for first-time borrowers to apply as of January 11, 2021. The rules for first-time borrowers under the PPP First Draw Program have generally adopted the same guidelines as the PPP Second Draw Program, with a few changes, including: (i.) the entity may employ 500 employees or fewer, (ii.) the maximum loan amount is $10 million, and (iii.) the calculation for payroll costs can be derived from 2019, 2020 or one (1) year before the date on which the loan is made.[xvi] The updated PPP First Draw Program loan application can be found through the SBA website here.[xvii]
ADDITIONAL RESOURCES & ARTICLES
Capell Barnett Matalon & Schoenfeld LLP has written comprehensive articles relating to the Paycheck Protection Program and the Coronavirus Aid, Relief, and Economic Security Act (also known as the CARES Act), which may be relevant to your not-for-profit corporation or small business. See the below links for more information:
- April 4, 2020: Economic Relief for Non-Profit Organizations Through the Paycheck Protection Program.
- April 6, 2020: THE CARES ACT: Expansion of the Economic Injury Disaster Loans.
- April 22, 2020: Reimbursement for Mandated Sick and Family Leave Pay.
The SBA website also offers an array of helpful resources for first-time and second-time borrowers:
- January 08, 2021: Top-line Overview of First Draw PPP.
- January 08, 2021: Top-line Overview of Second Draw PPP.
- January 08, 2021: Loan Forgiveness Terms for First Draw and Second Draw PPP.
- January 06, 2021: Interim Final Rule: Paycheck Protection Program (PPP) as Amended by the Economic Aid Act.
The information in this article is continuously changing and being updated, and several details of the PPP Loans are yet to be announced by the U.S. Treasury and SBA. This publication is for informational purposes only and does not constitute legal or business advice. Each entity, based on its specific circumstances, must determine whether to seek and secure an SBA loan. In no way is Capell Barnett Matalon & Schoenfeld LLP advising that it is appropriate for all entities to seek such loans. This publication is not intended to create and the transmission and receipt of it does not constitute, a lawyer-client relationship. If your not-for-profit organization requires assistance, please contact Jodi Warren, Esq., at firstname.lastname@example.org or Alexandra Columbo, Esq., at email@example.com.
© 2021 Capell Barnett Matalon & Schoenfeld LLP. All rights reserved. Attorney advertising.
[i] Section 311 of the Economic Aid Act.
[vi] Section 343 of the Economic Aid Act.
[vii] Section 311 of the Economic Aid Act.
[ix] Section 304 of the Economic Aid Act.
[x] Section 311 of the Economic Aid Act. See also First Draw PPP Loans, https://www.sba.gov/funding-programs/loans/coronavirus-relief-options/paycheck-protection-program/first-draw-ppp-loans#section-header-2 (last visited January 14, 2021).
[xi] See SBA Form 2483-SD, https://www.sba.gov/document/sba-form-2483-sd-ppp-second-draw-borrower-application-form (last visited January 14, 2021).
[xii] Section 307 of the Economic Aid Act.
[xiv] Section 311 of the Economic Aid Act.
[xvi] See Top Line Overview of First Draw PPP issued by the SBA, https://www.sba.gov/document/support-top-line-overview-first-draw-ppp (last visited January 14, 2021).
[xvii] See SBA Form 2483, https://www.sba.gov/document/sba-form-2483-ppp-first-draw-borrower-application-form (last visited January 14, 2021).
What Non-Profit and Religious Corporations Need to Know
The Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) includes several provisions that enhance tax benefits for individuals and corporations that make qualified contributions to charitable organizations and shall apply to taxable years beginning after December 31, 2019. To encourage more charitable giving this holiday season, it may be helpful for non-profit corporations, including certain religious corporations, to make their members and congregants aware of the tax incentives provided to individuals and corporations, and review section 2204 and section 2205 of the CARES Act.
QUALIFIED CONTRIBUTIONS & ORGANIZATIONS
Section 2205 of the CARES Act defines a “qualified contribution” as a gift or charitable contribution that is: (i.) made in 2020; (ii.) paid in cash; and (iii.) made to certain organizations promulgated in Internal Revenue Code (“IRC”) section 170(b)(1)(A). These charitable organizations include but are not limited to, churches, hospitals and other section 501(c)(3) charitable organizations, among others listed in the IRC. Contributions made to organizations under IRC section 509(a)(3) and contributions made “for the establishment of a new, or maintenance of an existing, donor advised fund” do not qualify. The paid in cash requirement is construed strictly and donations of stock, real estate or other non-cash types of property are specifically excluded from the definition of a “qualified contribution”. Cash donations include those made by check, credit card or debit card.
TAX DEDUCTIBLE DONATIONS
a. Above-the-line Deduction
The CARES Act adds a new above-the-line deduction, available in tax years beginning after December 31, 2019, for up to $300 for cash contributions made directly to a qualified charitable organization. As an additional above-the-line deduction, it does not subtract from the standard deduction. This additional deduction lowers both adjusted gross income and taxable income, which translates into tax savings for donors who make these cash contributions in 2020. This new deduction cannot be used by an individual who elects to itemize deductions, as their charitable contributions will be reported elsewhere.
b. Limitation on Charitable Contributions
In accordance with IRC section 170 (b)(1), deductions for cash contributions to public charities are capped at sixty percent (60%) of the individual’s annual adjusted gross income. Organizations that are classified as public charities include certain churches, educational organizations, hospitals, and medical research organizations. The CARES Act suspends this limitation, allowing donors to claim up to one hundred percent (100%) of their adjusted gross income as a charitable contribution for cash gifts. If charitable contributions from an individual – as opposed to a corporation – exceeds the one hundred percent (100%) limitation, the excess contribution can be carried over for the next five (5) tax years.
2. Corporations Corporate deductions for charitable contributions are usually limited to ten percent (10%) of taxable income, pursuant to IRC section 170(b)(2). The CARES Act increases this limitation to twenty-five (25%) of a corporation’s taxable income for qualified cash contributions made in taxable years ending after December 31, 2019. For partnerships or S corporations, the increased contribution deduction must be made separately by each partner or shareholder similarly to other deductions made by such entities. If a corporation’s charitable contributions exceed the twenty-five percent (25%) limitation, the excess contributions may be carried over for the next five (5) tax years.
3. Food Inventory The CARES Act also modifies the cap on permitted deductions for contributions to food inventory (i.e., food pantries), by increasing the deduction limit of individuals and corporations to twenty-five percent (25%) of taxable income, rather than the earlier fifteen percent (15%).
ADDITIONAL RESOURCES FROM THE INTERNAL REVENUE SERVICE (“IRS”)
The IRS has provided a list of resources for individuals and corporations interested in making these donations and receiving these tax benefits. The below links may be helpful for your non-profit corporation and religious corporation during this holiday season to encourage donations:
- Tax Exempt Organization Search (TEOS). Taxpayers must give to qualified organizations to deduct their donations on their tax return. They can use this tool to find out if a specific charity qualifies as a charitable organization for income tax purposes. Click here.
- Schedule A, Itemized Deductions. Taxpayers deducting donations do so on Schedule A. The instructions for this form include line-by-line directions for completing it. Click here.
- Publication 526, Charitable Contributions. This publication explains how taxpayers claim a deduction for charitable contributions. It goes over: (i.) how much taxpayers can deduct; (ii.) what records they must keep; and (ii.) how to report contributions. Click here.
The information in this article is continuously changing and being updated. This article is for informational purposes only and does not constitute legal or business advice. In no way is Capell Barnett Matalon & Schoenfeld LLP advising that it is appropriate to only follow the information listed here. If your religious corporation or non-profit organizations requires assistance, please contact Alexandra Columbo, Esq. at AColumbo@cbmslaw.com.
© 2020 Capell Barnett Matalon & Schoenfeld LLP. All rights reserved. Attorney advertising.
The CARES Act Section 2205(a)(3)(A)(i)
The CARES Act Section 2205(a)(3)(B)(i)-(ii)
The CARES Act Section 2204(a)
The CARES Act Section 2204(b)
IRC Section 170(b)(1)(G)(i)
The CARES Act Section 2205(a)(1)
The CARES Act Section 2205(a)(2)(A)(ii)
IRC Section 170 (b)(2)
The CARES Act Section 2205(a)(B)(i)
The CARES Act Section 2205(a)(3)(C)
The CARES Act Section 2205(a)(2)(B)(ii)
The CARES Act Section 2205(b)
IRC Section 170(e)(3)(C)
Partner Gregory Matalon featured on The Business Journal’s Mass Mutual Business Owner’s Perspective Podcast
CBMS Partner Gregory Matalon was a guest on “The Business Journal’s Mass Mutual Business Owner’s Perspective Podcast” with Brian Bushlack. Many business owners don’t have a succession plan or estate plan in order. Without a plan, the business and business owner’s family may suffer. Click the link below to listen and learn more about the importance of planning.
The novel coronavirus (“COVID-19”) pandemic has created economic hardships for businesses and individuals that have and will continue to affect contractual obligations. New York law provides several defenses to fulfilling your contractual obligations that may be available during this time. In some situations, invoking these defenses may temporarily suspend or eliminate performance obligations, while in others they may terminate the contract. CBMS can advise you on strategies to address potential breaches, either through renegotiating contracts or in litigation, if negotiation strategies fail.
The place to start is to review your contracts for provisions that may excuse failure to perform or provide other alternatives to timely performance. These provisions may have notice requirements, which are important to be aware of early.
Your contract may include a “force majeure” (or “Act of God”) provision that may protect parties if events beyond their control, such as wars, floods, earthquakes, or travel bans, make it impossible to perform contractual obligations. In New York, contracts must explicitly include a force majeure provision to be able to use this doctrine.
New York courts typically interpret force majeure provisions narrowly. If the provision lists specific events, courts will excuse performance only if one of these events occurred. If your contract includes a force majeure clause that lists “pandemics,” “epidemics,” “viral outbreaks,” “quarantines,” “travel bans,” or other similar terms, it may be possible to use it to excuse or delay performance of contractual obligations as a result of COVID-19.
If your contract includes a force majeure clause, you must also be prepared to show that COVID-19 made it impossible for you to perform and that you made reasonable efforts to avoid failure to perform but were unsuccessful. You may also have to show that COVID-19 was unforeseeable at the time you entered the contract. Therefore, if you entered the contract after COVID-19 had become a global pandemic, it may also be difficult for you to use this provision.
There are several other defenses that may excuse potential breaches in New York.
Termination: Some contracts include provisions that allow a party to terminate the contract under certain circumstances. These provisions may apply in the COVID-19 pandemic.
Extension of Time: Your contract may include provisions that permit extensions of time if unexpected events occur. Even if your contract does not, it may be worthwhile to try to negotiate in good faith an extension with the other party if performance will become possible when the effects of COVID-19 lessen. These negotiations may help you avoid litigation.
Explore Your Other Options
If your contracts do not include the clauses discussed above, or if the clauses are ambiguous or inapplicable, you may still have options. New York courts have created certain defenses that, while not contained within the four corners of the contract, may be used to try to avoid liability for breach of contract: Frustration of purpose, impossibility, or impracticability.
Frustration of purpose excuses failure to fulfill contractual obligations when an unforeseen event makes a contract virtually worthless.
Impossibility excuses breach of contract when an unanticipated event destroys the subject matter or the means of performance of the contract such that performance is objectively impossible.
Impracticability under the Uniform Commercial Code may be used if the contract is for the sale of goods and a contingency occurs that makes performance impracticable and the nonoccurrence of the contingency was a basic assumption of the contract.
The information in this article is continuously changing and being updated. This article is for informational purposes only and does not constitute legal or business advice. In no way is Capell Barnett Matalon & Schoenfeld LLP advising that it is appropriate to only follow the information listed here. If you or your organization require assistance, please contact Elizabeth Cate Esq., firstname.lastname@example.org, Joseph Milano Esq., email@example.com, or Peter Sanders Esq., firstname.lastname@example.org .
Over the past few weeks, our firm has received increased inquiries regarding estate planning options and considerations. While the needs of each family and individual differ, many of the questions focus on the basics: If I get sick, who will make health and financial decisions for me? Upon my death, who will handle my affairs, receive my assets, and take care of my young children (and pets)? How should I organize my important documents and where should I keep my documents?
If you are reviewing your estate planning documents, focus on the essentials. If you have not yet created estate planning documents, you may wish to use this bit of “downtime” to think about these issues. Below are some things to consider:
1) Health Care Proxy and Living Will
- A health care proxy allows you to appoint an agent to make health decisions for you if you are unable to do so. Your agent must be over the age of 18, and should be someone that understands and will abide by your wishes and instructions. You may also designate successor agents. The health care proxy should also provide a HIPAA release, so that your agent can receive your medical records and information.
- A living will allows you to state your wishes for medical treatment, so that the doctors, hospital staff, and your health care agent are guided accordingly. Review your living will to determine if your wishes are accurately stated.
2) Durable Power of Attorney
- A durable power of attorney allows you to designate an agent (or agents and/or successor agents) to act on your behalf in financial matters. These actions can include, among other things: real estate, banking, and business transactions, access to digital assets, and authority to handle personal and other tax matters. Review your power of attorney and the authority that you have provided to your agent.
- Your agent must be over the age of 18, and should be someone that you trust to make financial decisions in your best interest.
- When appropriate for tax and elder law planning, a statutory gift rider can be attached to the power of attorney to provide your agent with gifting powers and limitations.
3) Last Will and Testament – Your will is one of the central documents to provide for the distribution of your property.
- In your will, your executor (the person(s) or entity that manages your estate) will be responsible for collecting assets, paying expenses and taxes, and ultimately distributing your remaining assets as provided in your will.
• Choosing your executor is important. An individual executor must be over the age of 18, and not be a convicted felon (other legal requirements may also apply). Your Executor should have the proper balance of management ability and personal insight into your family and your wishes. Your executor will also be responsible for making various tax elections that will affect your beneficiaries.
• It is important to provide adequate discretion and powers for your executor depending on the nature of your assets. For example: If you have a business, does your will allow your executor to continue your business?
- Review your current assets and liabilities and how they are titled.
• Prepare a financial summary.
• Your will only controls assets which are held in your name alone, and without named beneficiaries; jointly held assets and assets with named beneficiaries pass outside the will.
• Review applicable current federal and state estate and income tax laws with your advisors.
- Have you addressed major life changes, such as marriages, divorces, births and deaths?
- Once you have determined who will receive your assets, it is important to decide how each beneficiary will receive his/her inheritance – outright or in a trust. There are various tax, management and asset protection reasons to create a trust. Your will can create one or more trusts that state how the assets will be invested, managed and distributed. Your selection of trustee(s) and successor trustees is important. Trustee discretion and powers are also important, and should be reviewed.
• Common types of trusts created in a Will include:
• Trusts for individuals under a certain age
• Supplemental Needs Trusts
• Credit Shelter/Renunciation/Disclaimer Trusts
• QTIP Trusts
• Generation-Skipping Trust
• Trusts for asset protection/management
• Qualified Subchapter S Trusts (consider if you own an interest in a Subchapter S corporation)
• Pet Trusts
4) You may have also created one or more lifetime trusts for estate tax planning, elder planning or other purposes. Confirm that your trusts still satisfy your goals. When reviewing the trust agreement, focus on (i) the assets titled to the trust, (ii) the appointed and successor Trustees, (iii) the current and ultimate beneficiaries of the trust, and (iv) the Trustees’ authority to manage, invest and distribute the assets.
5) Review all beneficiary designations to confirm they are consistent with your plan. Confirm that the individuals/charities you wish to benefit are properly and clearly described. It is important that certain assets, such as retirement accounts, have designated beneficiaries.
6) Clients often ask where to store their documents. Documents should be kept in a safe place that is accessible to the individuals appointed in your documents. If you have stored documents in your safe deposit box, please make sure that your agent(s) can access the box during your lifetime, and that your nominated executor can access the box after your death. If the documents cannot be accessed, additional steps will be required.
To aid your agents, executors and trustees, you may wish to create folders containing:
- Business, financial and personal statements/documents,
- A password list,
- Names and contact information of your family members and friends, medical professionals, legal and financial advisors, etc.,
- Recent business and individual income tax returns, and
- Funeral, burial, and other instructions.
If you wish to create, discuss or amend your plan, we are available to assist, and can do so online without an office visit. Most importantly, we hope that you are taking steps to stay safe, and we wish you and your family good health.
If you have any questions, please contact our estate planning and elder law attorneys:
Gregory L. Matalon, Esq., Partner, email@example.com
Erik M. Olson, Esq., Associate, firstname.lastname@example.org
Robert S. Barnett, Esq., Partner, email@example.com
Stuart H. Schoenfeld, Esq., Partner, firstname.lastname@example.org
Jordan Kanzer, Esq., Associate, email@example.com
Damianos Markou, Esq., Counsel, firstname.lastname@example.org
Monica P. Ruela, Esq., Associate, email@example.com
ATTORNEY ADVERTISING: This memorandum provides general information on legal issues and developments of interest to our clients and friends. It does not provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters we discuss here. Should you have any questions or wish to discuss any of the issues raised in this memorandum, please call your Capell Barnett Matalon & Schoenfeld LLP contact.
CBMS Partner Robert Barnett recently presented a lecture through Lorman discussing how to utilize passive activity losses including recent tax legislation and cases.
With so many new tax rules, it is important to be informed before the upcoming tax season Lorman has graciously offered this 93-minute lecture to our friends and colleagues at a 50% courtesy discount. The course is eligible for 1.5 CPE credits in Connecticut, New Jersey and 9 other states.
Click the link below if you would like to access it as either an OnDemand Webinar, an audio file and reference manual delivered on USB flashdrive, or MP3 download of the webinar along with reference manual.
CBMS is pleased to report the success of our 5th annual Interchurch Center Conference. This year, titled ‘”Reenvisioning Mission and Ministry: Creative Strategies for the Church of Tomorrow” had amazing speeches from all of our speakers, beginning with our Keynote address: How We Gather’s Casper ter Kuile. Casper is the co-founder of Sacred Design Lab, a research and design consultancy working to create a culture of belonging and becoming. His engaging speech gave audience members opportunities to reflect and converse with each other, but also to ask thought-provoking questions and learn about the parallels of gathering in different circumstances.
Bill Woolsey, founder of the FiveTwo Network, and Melissa Spas, Director of Education and Engagement of the Lake Institute on Philanthropy and Giving, rounded out the rest of the speakers with their own respective talks on Christianity’s place in leadership, and the ways beyond monetarily that we can contribute philanthropically.
The conference was wrapped up with two panels, first a diverse panel of pastors from various backgrounds and denominations speaking of their various experiences as leaders of the faith in New York. The Reverends Cleotha Robertson, Andrew Durbidge, William Critzman, and Lenny Duncan delivered touching anecdotes about the different struggles that come with leading a congregation, being LGBT, not having enough money to renovate appropriately, and more. Ultimately their different backgrounds demonstrate the individual perspectives that they bring to the table in order to solve the problems that they all face.
Finally, the Council of Church Advisors, a not-for-profit group that was a main sponsor for the Conference held a panel with its members discussing how to spearhead solutions from different professional avenues. They are a diverse group of individuals from different professions that have joined together to help address and fix the ailments presented to most modern congregations, and from a multi-faceted approach work with leaders of said congregations.
We hope all who attended enjoyed themselves and took something valuable away from the conference. Here’s to another successful conference next year!
I write this on 9-11-19 remembering that sad and infamous day eighteen years ago. Sadness continues to overwhelm me as I recall all those innocent victims. I recall especially also those 60 children who were all students in the Lutheran Schools of New York who on that day lost either a parent or a grandparent. I recall those trapped, those who leapt to their death. And I recall the public servants who did all they could to assist. Painfully I remember those misguided men who perpetrated this unthinkable evil-and did it in the name of God.
I remember with special admiration and gratitude the many who rendered all kinds of supportive services to those so terribly affected by this event. I recall with special gratitude and admiration the incredible work of Lutheran Disaster Relief New York under the extremely capable leadership of John Scibilia.
In the midst of the throng that passes by in my mental image I recall one who was not at the Twin Towers that day but later assisted many of those affected by that disaster-HOWARD CAPELL. Howie was an incredibly gifted and big-hearted New York lawyer. Howie was my personal lawyer and he was the official lawyer for The Lutheran Schools Association-and of many other Lutheran friends, churches and schools.
Of special interest is the fact that he was the persistent, patient, unrelenting and capable attorney for Dr. David Benke. Dr. Benke was the President (Bishop) of The Atlantic District of the LCMS. He joined thousands in a public outpouring of prayers at Yankee Stadium praying for all those affected by 9-11. Some high church officials deemed his prayerful participation contrary to Lutheran doctrine and practice and sought to have President Benke defrocked. Howie was his legal representative and hung in there for years until Benke was finally cleared
Howie did more. He pleaded the case of many public service employees or dependents who lost their lives or whose lives were severely negatively affected by all that went on in, under, and near to the those fallen towers. Of special note was the appropriate benefits which he secured for many police officers and their families. I have written in a previous blog how he became known throughout the city for his tenacious advocacy and how police officers quickly recognized his automobile, cleared traffic for him, found him immediate parking spaces-always free and within close walking distance of his destination-even in the midst of Times Square.
Previous to the 9-11 situation Howie was always there for The Lutheran Schools in New York and elsewhere. He fended off suits brought by upset parents or angry former teachers. He was especially helpful in more than one case through his unbelievable contacts and pleadings with the IRS and other government agencies. On at least three occasions he aided schools which had withheld FICA payments from employees but never sent them in the IRS or Social Security. In each case Howie used his skills and contacts to have fines written off and the balances reduced.
He helped write all the documents to have The Lutheran Schools Association be properly registered with government agencies -and he did it all pro bono.
He wrote my will. When by God’s special grace to me to I made a significant profit on an investment he insisted that I tithe the profits with a gift through a church related charitable remainder trust. Now 25 years later I still get a generous annual interest payment and at my death a trio of my favorite causes will receive their remainder.
And he was fun to be with. He was not a drinker of alcohol but always invited his guests to enjoy a libation. He took me to New York steak houses that were way out of my price range. He brought guests to benefit golf events and purchased more lottery tickets than anyone else. Of special interest to me was when he and Sheila accompanied me on an incredible tour of China (including the whole Eastern section) and Tibet. He met everybody, left the group when he wanted to do his own thing, and made friends with all whom he encountered. And a couple years after that China trip he joined me and a couple others for an unbelievable and unheard of “week-end expedition to Hong Kong for golf”.
He was a strong family man and it was fun to watch and listen to his family interactions. His sons wisely chose not to be his business partners-and loved him dearly. His marvelous wife Sheila and he was always at odds on foreign travel, eating choices, how much time to spend in their Florida home and lots of other stuff – but always loved each other, stood up for and by each other and were 100% mutually faithful.
Howie loved doing work not only for Lutheran churches and schools but also for many other churches and he had the reputation as the right one to go for if any religious organization in New York ever needed legal advice or representation.
His heritage was 100% Jewish. He was not one to be overly committed to observing the Sabbath. But especially in his later days as he (way too early) suffered and eventually died of cancer it was important to him that appropriate religious rituals and expectations be observed.
And so today I remember my friend, my advocate, my model, my brother: HOWARD CAPELL.
Christopher Wright’s article, “Can a Combined Zoning Lot Include a Partial Tax Lot?” was published in the New York Law Journal Volume 261 – No. 120, on June 24th, 2019.
Christopher serves as the primary zoning counsel for CBMS.