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jeopardizing investments board meeting

Public charities and private foundations are both classified as 501(c)(3)s by the IRS. However, the different nonprofit operating structures come with different benefits, requirements, and challenges that can make navigating compliance difficult. I’ve written previously on aspects of private foundations including prohibited grants, payout requirements, and avoiding self-dealing. The best way to deal with many of the ins and outs of learning about private foundations is to deal with each individually; today let’s focus on jeopardizing investments.

Don’t Jeopardize the Foundation

Failing to exercise prudence and investing in ways that threaten the foundation’s ability to carry out its exempt purposes—called jeopardizing investment—and can result in a stiff penalty.

Many factors can contribute when determining whether or not an investment can be considered jeopardizing. At the least, a private foundation’s managers must exercise reasonable, ordinary business judgment and prudence in investing a foundation’s assets. Investments should also be made with the short and longterm financial needs of the entity in mind. This is part of baseline fiduciary duty board members must act with by closely overseeing the nonprofit’s finances.

 

Penalty Payment

In cases of jeopardizing investments, an excise tax of 10% is imposed on the foundation for the IRS-defined taxable period. Foundation managers can also be held personally liable and taxed up to a max of $10,000 (or 10% of the jeopardizing investment) if the “knowing, willfully, and without reasonable cause” participated in the making of the investment.

Furthermore, if the foundation does not take steps to remove an investment, an additional tax can be imposed on both the foundation and the responsible foundation managers.

High-Risk Activities: Proceed with Caution

While no category of investment is outright prohibited, a private foundation’s managers must pay close attention to high-risk activities, such as trading securities on margin, trading in commodities futures, and short selling, among others.

Get the Right Advice

All of this said, this is general advice and each charitable organization is unique. I highly recommend seeking out an attorney well-versed in nonprofit law to assist with multiple aspects of the charitable organization life cycle from the formation through employee hiring through board development.

Questions? Want to make sure your private foundation is taking the right steps to avoid adverse consequences like audits and taxes.

private foundation board meeting

When you first read the headline to this blog post you might have been (rightfully) confused. A private foundation is a type of 501(c)(3), so isn’t this type of nonprofit tax-exempt from federal income tax? This is just one of the nuances of private foundations that can make forming and managing them complicated. Previously I’ve covered other aspects about the private foundation that are important for foundation leaders to understand including avoiding jeopardizing investments, prohibited grants, self-dealing, and payout requirements. Today let’s shine the learning spotlight on excise taxes.

Tax Exempt, But…

Even though private foundations are exempt from income tax, they are subject to an annual 2% excise tax on the income they earn on their net investment income. (This is often referred to as the private foundation excise tax.) The purpose of collecting this revenue is to fund IRS oversight of the nonprofit sector.

Can you Reduce the Tax?

In certain circumstances, the excise tax can be reduced to 1%. The tax is reduced in situations where a foundation’s distributions (measured as a percentage of assets) in a given tax year exceed the average payout rate of the foundation over the preceding five years, by an amount at least as much as the 1% tax savings the foundation will obtain. This is called the “maintenance of effort test” and was implemented to make certain that tax savings are being used for added charitable expenditures as opposed to being “pocketed” by the foundation.

Managing & Administering

Managing and administering the private foundation excise tax can be difficult and complicated, particularly because of the two-tier tax structure. This can also be challenging in decision-making because it somewhat discourages foundations to consider increasing gift for unanticipated grants, such as in the case of a natural disaster or other relief efforts. To comply with the private foundation excise tax requires staff to constantly monitor and adjust spending and savings in order to calculate the correct tax rate.

How to Prepare Your Private Foundation

I highly recommend enlisting an attorney well-versed in private foundation operations in order to stay on top all requirement and avoid detrimental missteps. You may also want to consider implementing training for foundation board members. It’s also a good idea to implement sound policies and procedures and update them when necessary as the foundation evolves and circumstances change.

Questions? Want to learn more about how to make certain your private foundation is set up for success from the start? Don’t hesitate to contact me for a free consultation. You can also download my free, no-obligation nonprofit formation guide!

blackboard

April Fool’s and Easter aren’t the only days to look forward to in April! I like to help spread the word about all the awesome events, awards, and grants available in Iowa. There are so many great opportunities for nonprofit pros, board members, volunteers, and donors, that range from webinars to workshops. But, life is busy, and it can be hard to keep track of what you should register for or put on your calendar. That’s why I compiled a list for your convenience!

Learning Seminars, Trainings, & Workshops

  • 4/2- For those on the western side of the state of Iowa, young professionals can take advantage of the opportunity to learn about what it means to serve on a nonprofit board at this Board Training (in Omaha) presented by Share Omaha.
  • 4/3- Still not sure how search engine optimization can help your nonprofit, or what it is? Cedar Falls-based Red Lab Technologies will be helping the Community Foundation of Northeast Iowa Marketing Meet Up group get answers and solutions to these questions and more.
  • 4/4- Attend the Central Iowa Chapter of Grant Professionals Association, “In It to Win It – Grant Writing, Management, and Everything in Between” workshop at DMACC. Pro grant trainers Johna Rodgers, GPC, and Amanda Day, GPC, share their knowledge of grant writing, management, and other topics.
  • 4/4- The Minnesota Planned Giving Council will lead community foundation participants in a one-day seminar through the nuts and bolts of planned giving instruments and strategies at the Greater Des Moines Botanical Gardens. Registration is $25 per participant.
  • 4/9- Cedar Valley Nonprofit Association is hosting SuperSTAR Supervision to enhance your professional skill repertoire while heightening the intentionality of your supervision through the sharing of tips and strategies to make you a S.T.A.R. in your most important role. Presenter: Dr. Beth Triplett, Leadership Dots.
    Free for CVNA members/$25 non-members.
  • 4/9- The Association of Fundraising Professionals Eastern Iowa Chapter is hosting a program highlighting the Eastern Iowa successes with giving circles that reflect the generosity of community members and may offer insights into giving preferences of a relatively untapped demographic. Learn more from Leighton Smith, who helped found the Hawkeye Chapter of 100+ Men Who Care, which surpassed $500,000 in total cash contributions this past November.
  • 4/15- Hosted by World Renew in Pella, “Helping that Helps” workshop attendees will hear stories from practitioners, best practices from each other, and be inspired to confidently partner both locally and globally in a way that provides hope instead of unintended harm.
  • 4/25- For the quarterly membership meeting of the Iowa Council of Foundations, head to NewBoCo for an interactive session on how Power Moves can help you redefine risk to more effectively build, share and wield power for equity and justice.
  • 4/30- Here’s a great event in Des Moines: “A Fairytale for Fundraising: Storytelling Strategies to Inspire Donations.” The workshop is for nonprofit staff and board members who want to make a connection between marketing and development functions, lead fundraising or promotional efforts for the organization or want to gain a better understanding of how they can be an ambassador for their organization by telling the story of impact and opportunity. The cost to attend is $30 and the event will be held at Junior Achievement in Des Moines.

Events

  • 4/4- UNI’s Nonprofit Leadership Alliance Student Association hosts the15th Annual Cedar Valley Nonprofit Awards Luncheon to recognize the contributions of local nonprofits and nonprofit leaders.
  • 4/5- Put a spring in your step with eight rounds of trivia in Iowa City to benefit a community non-profit, the Antelope Lending Library Bookmobile.
  • 4/6- Join the Clinton Committee at the 24th Annual Clinton Benefit: Red, White, and Blue make wishes come true to benefit Make-A-Wish Iowa.
  • 4/6- Hops for Housing is a fund- and awareness-raising event at NewBo City Market to benefit Willis Dady Homeless Services, which provides shelter and prevention services to homeless and near-homeless households in Linn County. The event will feature beers from 35-40 local, state, national, and international breweries. Tickets are $30 in advance and $35 at the door.
  • 4/12- Eastern Iowa Corridor wine and beer tasting event, Uncork A Wish, returns to Cedar Rapids. All proceeds will go to Make-A-Wish Iowa to help grant wishes for children with life-threatening medical conditions.
  • 4/25- Attend the spring banquet benefiting the Dubuque Dream Center. The theme is Impacting Youth. In the keynote, “Telling Our Story,” teachers, parents & students will share how the Dubuque Dream Center has impacted lives and the Dubuque community. An individual ticket for this event is $75 and a table of 8 is $600.
  • 4/26- Putts for Prevention is an exciting and fun nine hole putt-putt course located at all of your favorite downtown eateries in Cedar Rapids. Your day will start at Greene Square Park and follow the course of restaurants and bars. The best part? The proceeds will go to Foundation 2 and support crisis services and suicide prevention efforts.

Grants

There are so many great events and opportunities for nonprofits and the people that advance them that there is no doubt I missed some in the list above. If you would like to notify GFLF of any upcoming nonprofit-focused events and opportunities in the coming months, don’t hesitate to email me at gordon@gordonfischerlawfirm.com.

stop sign

Awarding grants is a primary way for private foundations to accomplish their charitable goals. It’s also an oft-used way to meet annual distribution requirements to avoid an IRS-imposed penalty of an excise tax. However, this area of nonprofit activity can be ripe for misstep and noncompliance because some grants are prohibited. Further, others require heightened diligence to steer clear of trouble.

Taxable expenditures

Taxable expenditures for non-charitable purposes are not considered qualifying distributions, including:

  • Lobbying
  • Political activity to influence legislation
  • Grants to organizations other than most public charities

Scholarships

  • Scholarships to individuals for travel or study are considered grants. However, grant-making plans need prior approval from the IRS and must include certain provisions, such as monitoring the performance of the grantee.

Adopt Smart Grant-Making Policies & Procedures

It is in the best interest of private foundations to exercise expenditure responsibility by setting in place a formal set of policies and procedures for grant-making. This document and its provisions, among other things, should:

  • Ensure that grant funds are spent solely for grant purposes
  • Obtain full and detailed reports from the grantee on how grant funds are spent
  • Make full and detailed reports to the IRS with respect to such grants

When it comes to high quality policies and procedures, you can and should avoid the time, energy, and monetary costs of DIY Internet templates. Set the foundation up for success when you enlist an attorney well-versed in nonprofit law to draft a document (or set of documents) and implement with an effective, engaging board/staff training. The benefits of investing in a qualified attorney to craft your important policies (like those related to grant-making) are numerous; the right attorney will put your organization’s best interests first, saving you resources in the long run.

two people talking at table

It’s important to note that the info in this post is, at best, a mere outline of just one of the complex regulations governing private foundations.  If you want to learn more, don’t hesitate to contact me as I offer a free consultation. You can also download my free, no-obligation nonprofit formation guide if you’re thinking about topics like this the pre-formation phase of the foundation’s life cycle.

Two woman at board meeting table

When forming a nonprofit organization, at some point founder have to weigh the merits of the public charity versus the private foundation. Both are classified by the IRS as 501(c)(3)s. There are indeed benefits and challenges to the structure of both nonprofits, but private foundations can be subject to stricter oversight and need to meet different requirements to retain compliance. Because all the different aspects of a private foundation can be difficult to parse out together, it’s helpful to break it down. We’ve covered self-dealing and now it’s time to explore the payout requirement for private foundations.

Qualifying Distributions

Unlike public charities, private foundations are required to spend a minimum amount—called a qualifying distribution—for grants, administration, and other charitable distributions every year, or pay a penalty. The amount of the qualifying distribution is equal to 5% of the fair market value of the foundation’s assets during that year.

The following are considered permissible for qualifying distribution payments:

  • Grants
  • Costs of all direct charitable activities
  • Program-related investments and loans
  • Administrative expenses necessary for the conduct of its charitable activities
  • Asset purchases for carrying out charitable activities (such as furniture or computers)
  • Program-related investments and loans

If a private foundation fails to make a qualifying distribution, the IRS imposes a hefty penalty (a 30% excise tax) on the funds a private foundation fails to distribute.

The More You Know

An important caveat to the qualifying distribution requirements is that a foundation may elect to set aside funds for up to 5 years for certain major projects. Furthermore, excess qualifying distributions may be carried forward for a period of five tax years immediately following the tax year in which the excess was created.

Leader Liability

Foundation managers should be aware that while the penalty is imposed on the foundation, individuals may also be charged penalties on the grounds s/he failed to exercise fiduciary duties.

Let a Lawyer Help

With all of that said, this is why it’s a smart (even essential) idea to enlist an attorney well-versed in the intricacies of nonprofit law to serve as a guide at different steps throughout the life cycle of a private foundation, from formation to board building, to continued compliance.

employees talking

Questions? Want to learn more about how to make certain your private foundation is set up for success from the start? Don’t hesitate to contact me for a free consultation. You can also download my free, no-obligation nonprofit formation guide!

two people at board meeting

Typically when you think of a nonprofit you generally think of a public charity. However, private foundations (and private operating foundations) are also 501(c)(3) organizations under the IRS’ classification system. Understanding the difference between the different tax-exempt organization is key because, while public charities and private foundations have much in common, there are also major differences. The most important of these differences to understand is that private foundations are subject to much stricter regulations and oversight than public charities.

Because this can get complicated in this post let’s just cover private foundations and the rules related to “self-dealing.”

Look to the Code

Section 4941 of the Internal Revenue Code (IRC) and related regulations prohibit any direct or even indirect financial transaction between a private foundation and virtually every person closely associated with it, who are known as “disqualified persons.”

Disqualified Persons

The IRS code is quite specific as to who “disqualified persons” are—and they can be individuals, as well as legal entities, trusts, and even other foundations; it’s a very wide net.

Disqualified persons include:

  • Any substantial financial contributors to the foundation
  • Officers, directors, trustees, or persons who can act on behalf of the organization
  • All family members, including spouses, children, grandchildren, and spouses of children of individuals described above
  • Controlled entities (e.g., a corporation of which disqualified persons own more than 35% of the combined voting power)
  • Certain government officials

Simply put, if a person has influence over the decisions of the private foundation or a particular relationship with it, it’s extremely likely that they are a “disqualified person.”

Specifically Prohibited Self-Dealing Acts

Self-dealing occurs when a disqualified person acts in his or her own financial interest, rather than in the best interest of the private foundation he or she serves.

The IRS code lists these six (6) specific acts of prohibited self-dealing:

  • The sale, exchange, or leasing of property
  • The lending of money or other extensions of credit
  • The furnishing of goods, services, or facilities
  • Payment, compensation, or reimbursement of expenses
  • Transfer to, or use by, or for the benefit of, a disqualified person of any income or assets of the foundation
  • An agreement to pay a government official

As you can see, rules against self-dealing are quite expansive when it comes to financial transactions.

Exceptions to Self-Dealing Rules

Like most areas of the law, there are exceptions to the self-dealing rules for private foundations. But great care must be taken because they are relatively narrow and require both skill and care to use.

Exceptions to self-dealing rules include:

  • A disqualified person can make a loan to a private foundation with no interest or charge if the funds are used exclusively for purposes related to the foundation’s charitable goals;
  • A disqualified person can enter into a no-rent lease with a foundation or otherwise make its facilities available free of charge;
  • Compensation and reimbursement of expenses for services provided by disqualified persons are permissible if the amount is both reasonable and necessary to carry out the foundation’s charitable goals;
  • Certain scholarship, travel, and pension payments to government officials are allowed.

Common Problem areas

There are several self-dealing hazards for private foundations. The most common include: 

Pledges
  • Allowing the foundation to satisfy a personal pledge of a disqualified person with foundation dollars is considered self-dealing.
Event tickets
  • The foundation’s purchase of event tickets for a disqualified person unless the disqualified person attends a grantee’s event in order to evaluate the charity’s activities.
Family member expenses
  • Family members of disqualified persons are considered disqualified persons, so allowing a foundation to pay their expenses is considered self-dealing if they don’t have foundation duties to justify payment of their expenses.
Shared resources
  • If a company devotes office space, staff, or other resources to a private foundation it establishes, the private foundation must keep meticulous records to avoid self-dealing.

Protect Your Private Foundation with a Team of Advisors

If you’re thinking about forming a private foundation, I highly recommend you see the advice of an attorney well-versed in the nuances of nonprofit law. The info in the blog is, at best, a mere outline of the complex and stringent laws governing private foundations.  That said, forming and growing a private foundation can be immensely rewarding to the communities and causes you want to serve. To best execute, it’s wise to build up a team of knowledgable professional advisors that can safely guide the way through the legal hoops.

If you want to learn more, don’t hesitate to contact me as I offer a free consultation. You can also download my free, no-obligation nonprofit formation guide.

charitable gift tax limits - hand holding christmas gift

If you choose to itemize your taxes, charitable contributions can reduce your tax bill. Generally you would choose to itemize when the combined total of your anticipated deductions (like charitable gifts) add up to more than the standard deduction. For 2018 taxes the standard deductions are:

  • $12,000 for single individuals
  • $12,000 for married, filing separately
  • $24,000 for married filing jointly
  • $18,000 for head of household

If you do choose to itemize, limits on federal income tax charitable deductions are quite high, but they do exist. Keep this in mind as you make any year-end donations. The specific limitations are complicated, and there are numerous exceptions. The limits are based on your AGI (adjusted gross income). AGI is an individual’s total gross income minus specific deductions.

A quick rule-of-thumb for different types of donated assets to public charities:

  • Appreciated capital gains assets (such as stock) up to 20% of AGI
  • Non-cash assets up to 30% of AGI
  • Cash contributions, up to 60% of AGI
  • You can deduct transportation costs and other expenses related to volunteering

Note that these rates are for public tax-exempt organization and private operating foundations. Contributions to certain private foundations, veterans organizations, fraternal societies, and cemetery organizations are limited to 30% adjusted gross income. (Check out these IRS status codes and deductible limits if you’re unsure of an organization’s limit.)

As I mentioned, most people won’t exceed these limits indicated above, but it can happen. For instance, if Jane Donor is a retiree living off of savings and donates more than her investments yield over the year, her limit could be exceeded. The good news is that in this case the IRS allows you carry over excess contributions for up to five following tax years.

Don’t forget to take these steps if you plan to itemize your charitable deductions:

  • Make sure the nonprofit organization is a 501(c)(3) public charity or private foundation
  • Keep a record of the contribution (usually the tax receipt from the charity)
  • Depending on the donation amount/type, you may need to obtain a qualified appraisal to substantiate the claimed value of the deduction
  • Subtract the value of any benefits you received for your charitable contribution before you deduct it

I’m happy to advise on your situation and help you maximize your charitable giving for this tax year. I can be reached by phone at 515-371-6077 and by email at gordon@gordonfischerlawfirm.com.

Holding lights

Since 1968, every Section 501(c)(3) organization is classified by the IRS as either a private foundation or a public charity. This classification is crucial for at least two reasons to anyone considering forming a nonprofit or anyone considering making a significant donation to a nonprofit.

First, private foundations are subject to much stricter regulations than public charities. Second, public charities receive more favorable tax treatment than private foundations. Let’s explore each classification a little deeper.

Public Charities

heart ceramics bowls

Public charities must attract broad donor support. Some organizations—churches, schools, and hospitals for instance—are by their very nature considered “publicly supported.” Other organizations must pass mathematical public support tests to qualify as a public charity. These tests require charities to obtain funding from numerous sources, rather than one singular source, or a small group of related funders.

When a charity passes one of the public support tests, it is demonstrating to the IRS that the general public (non-insiders) evaluated the charity’s performance and found it worthy of financial support. As a result, such charities are treated as having a sort of stamp of approval of the general public, lessening the need for the stricter IRS scrutiny applied to private foundations.

Private Foundations

Do something great in neon

Private foundations are funded by an individual, a family, a company, or a small group. Two prominent examples would include the Ford Foundation and Bill & Melinda Gates Foundation.

Private foundations are subject to a more strict regulatory scheme than public charities. There are penalties for self-dealing transactions, failure to distribute sufficient income for charitable purposes, holding concentrated interests in business enterprises, and making risky investments. The IRS recognizes two types of private foundations: private non-operating foundations and private operating foundations. The main difference between the two? How each distributes its income:

  • Private nonoperating foundations grant money to other charitable organizations.
  • Private operating foundations distribute funds to their own programs that exist for charitable purposes.

In general, private foundations can accept donations, but many do not and instead have endowments, as well as invest their principle funding. The income from the investments is then distributed for charitable activities/operations.

Deduction limits

Contributions made to public charities and private foundations may be deducted from the donor’s federal income tax. The amount of the deduction is subject to certain limits under federal tax law.

Money and receipts

Gifts to public charities receive more favorable tax treatment than gifts to private foundations—this includes donor limits. For example, a charitable cash donation to a public charity would be deductible at up to 50 percent of the taxpayer’s adjusted gross income (AGI), but the same gift to a private foundation is deductible at a rate of only 30 percent of AGI.

A word on the word “foundation”

Don’t assume that an organization with “foundation” in its title/name is indeed a private foundation and not a public charity. Of course, it could be, but many types of nonprofit organizations have adopted “foundation” as part of their name to help project a mission and/or identity. (Examples include Friends of Animal Center Foundation and the Iowa City Public Library Friends Foundation.) If you’re entirely unsure if a nonprofit you’re considering donating to is a private foundation or public charity, simply ask one of the nonprofit’s executives or appropriate contact.

If you’re wanting to make a complex gift or include nonprofits as beneficiaries in your estate plan it’s wise to work with an attorney experienced in those areas. Of course, I would be happy to help.


Have any questions? Want to discuss your charitable donation or formation of your dream nonprofit? Contact me by email or phone (515-371-6077) .

lottery balls

Pull out those lucky golden tickets because the Mega Millions lottery jackpot has reached a record $1.6 billion. (The Powerball isn’t too shabby either, at $620 million). Undoubtedly, we’ve all daydreamed about what we would do with cash like that. Maybe your dream is jet setting, paying off debt (and then some), funding educations for your entire family, building a swank mansion stocked with Teslas…but, let’s bring it back to reality for a moment and talk about two perfectly practical and important things you SHOULD add to that list if you’re suddenly a Mr./Mrs. Money Bags.

sports car in front of mansion

Make an Estate Plan

It’s definitely true that estate planning is not just for the wealthy, but that doesn’t mean it’s NOT for the wealthy too! Estate planning is essential for the effective and successful transfer of wealth for high net worth individuals. A quality estate planner will take all assets (from artwork to real estate to investments) into consideration when deciding what strategies, vehicles, and tools to maximize your goals, tax savings for your estate, and solidify your legacy. (You do not want to join the likes of these celebs who passed away without a will!) With a high net worth, you definitely need to consider different types of trusts in addition to how best to practice charitable giving through testamentary gifts.

If you already have an estate plan, that great! But, with a massive influx of wealth you’ll likely need major updates and revisions.

Found a Private Foundation

Undoubtedly, if you come into massive wealth everyone is going to come out from the woodwork to try and get a piece of it. It’s great to share your winnings with the people and causes you care about, but you definitely don’t want fraudsters, scammers, or thieves looking to swoop in a take a piece of the pie. One of the best ways to protect your cash is by founding a private foundation. After you win, donate the money to your newly founded [Insert Your Name Here] Family Foundation of which you can serve as the executive director.

This is a smart move on multiple advisable fronts. For starters, because a private foundation is a charitable organization, you minimize your personal tax liability greatly. Furthermore, and more importantly, you get to use your endowed Foundation to support your charitable passion projects, help your community, and solidify a reputation for being an influential philanthropist. (Inspirational speaker circuit anyone?)

The private foundation, with its sound investment policies, is also a good way to have the principle grow significantly over time.

With a private foundation, you can serve as the executive direction and then hire family members and friends to essential administrative roles. Wondering how you actually “see” any of that money you transferred to your foundation? Salaries for such positions can be established based on private foundations of a similar size and wealth, so you can expect at least “enough” for an affluent life.

When founding a private foundation, enlisting an experienced nonprofit attorney is a must. Have your attorney advise on the IRS regulations you need to adhere to like filing the appropriate documents, refrain from political donations, and adopt important good governance policies and procedures. Additionally, you’ll want to avoid self-dealing like the plague! That means you can’t use foundation funds for your personal benefit, even if you founded it, because the foundation is completely separate different legal entity with a governing board of trustees who owe the foundation a fiduciary duty.

Person with fan of cash

There is much more to be said on the minutia of forming a compliant, successful private foundation, but we’ll save that for a future post! In the meantime, if you have questions, don’t hesitate to contact me!

You don’t need to be a lottery winner to establish a charitable organization (private or public)! With a mission, vision, and the tenacious drive to make an impact, you can form your own organization at any time if you follow the proper process. I’d love to help make your estate planning goals and charitable organization dreams happen at any asset level. Schedule your free consult or drop me a line via email or phone (515-371-6077).