Good Intentions Can Lead to Unintended Consequences Presented at: Denver Estate Planning Council March 16, 2017 Presented by: Jeffrey D. Haskell, J.D., LL.M. (Taxation) Chief Legal Officer
Establishing a Philanthropic Legacy When it c en it comes t mes to both t both total as tal assets and annual sets and annual gr grantmaking, the priv antmaking, the privat ate f e foundation dominat undation dominates s the the philanthropic landscape philanthr opic landscape. Donor-Advised Funds Donor-Advised Funds $45 billion Total Assets $8.6 billion Annual Giving Community Foundations Community Foundations $64.9 billion $4.9 billion Private Foundations Private Foundations $584 billion $35.4 billion Page 2 Sources: The Foundation Center, 2014 report and The Boston Globe
Private Foundation Compliance Fundamentals
Exemption Under Section 501(c)(3) • PFs are nonprofit organizations that are exempt from federal income tax under Section 501(c)(3) • PFs are organized exclusively for charitable, educational, religious, scientific, literary, and other named purposes under Section 501(c)(3) • In order for donations to be tax deductible, the PF must be officially recognized by the IRS as a Section 501(c)(3) charitable organization • PFs apply for recognition of exempt status by filing IRS Form 1023 • If IRS Form 1023 is filed within 27 months of formation, recognition of exemption is retroactive to date of formation Page 4
Tax Deductibility • Up to 30% of adjusted gross income (AGI) for donations of cash • Up to 20% of AGI for non-cash donations • Fair market value (FMV) deduction for contribution of “qualified appreciated stock,” which is generally: Publicly traded stock having market quotations readily - available on an established securities market Held for over 12 months (long term capital gain - property) No more than 10% (in value) of all of the outstanding - stock of the issuing corporation • The deduction for contribution of other non-cash property is limited to the lesser of basis and FMV Page 5
Background of Private Foundation Tax Law • The PF is a powerful vehicle for implementing philanthropic activities • There is a series of special tax rules in the Internal Revenue Code dedicated to PFs • Congress enacted provisions to prevent the operation of PFs for the benefit of their creators • Creators and other insiders are known as “Disqualified Persons” • Disqualified persons and PFs can be subject to tax penalties when conducting certain transactions Page 6
Headlines in the News • “Legislation Eyed to Fight Abuses at Foundations” • “AG Charities Chief to Review Salaries at 2 Foundations” • “Philanthropist’s Millions Enrich Family Retainers” • “Foundation Veers into Business” • “Massachusetts and 2 other States Probe Foundations” • “Making Philanthropy Accountable: New York’s Top Regulator Pushes for Far Reaching Changes” Page 7
Typical Areas of Scrutiny • Self-dealing issues • Trustee and employee compensation • Travel-related expenses • Financial transactions with insiders • Grants to non-public charities, especially cross-border grants • Fundraising • Grants to individuals Page 8
Excise Tax on Net Investment Income • A PF must annually pay a 2% (sometimes 1%) excise tax on specific types of income earned on its investments, including: - Interest - Dividends - Rents - Royalties - Income from sources similar to the above types of income - Capital gains • Investment-related expenses may be deducted from income • Excise taxes are calculated and paid annually, but quarterly estimated tax payments, if significant, may be required Page 9
Self-Dealing • Subject to narrow exceptions, the self-dealing rules prevent a PF and its disqualified persons (insiders) from entering into most financial transactions • It is immaterial whether the transaction benefits the PF • The self-dealer (not the PF) is personally responsible for paying a 10% penalty on the “amount involved” and the PF may not indemnify the self-dealer • The IRS lacks the authority to forgive (abate) a self-dealing penalty, even if the violation was inadvertent or there was reasonable cause Page 10
Key Self-Dealing Activities • Sale, exchange, or lease of property between the PF and a disqualified person • Loan of money or other extension of credit between a disqualified person and the PF • Furnishing of goods, services, or facilities by a disqualified person to the PF and vice versa • Use of or benefit from income or assets belonging to the PF, such as retaining artwork on private premises Page 11
Key Exceptions to Self-Dealing • Reasonable compensation for trustees, directors, officers, and other disqualified persons who render personal services to the PF • Loan of funds to the PF at no interest for a charitable purpose • Reimbursement of reasonable expenses incurred in carrying out PF business • Rent-free office space provided to the PF by disqualified persons No exception for sales or exchanges between the PF and disqualified persons, even if the deal’s terms favor the PF Page 12
Who Is a Disqualified Person? • A PF’s trustees, directors, officers (foundation managers), substantial contributors, and certain family members of such individuals • Certain entities in which certain disqualified persons, collectively, have a greater than 35% ownership or beneficial interest • An owner of more than a 20% interest in an entity that is a substantial contributor to the PF • Government officials (only for purposes of the self- dealing rules) Page 13
Who Is a Foundation Manager? • A “Foundation Manager” includes a private foundation’s: - Officers - Directors - Trustees - Individuals having similar powers or responsibilities • Advisors engaged as independent contractors with no direct legal authority are not managers Page 14
Who Is a Substantial Contributor? • A substantial contributor is one who: - Is the creator of a foundation that is formed as a trust; or - Has given, as of the end of any given PF tax year, an aggregate of more than $5,000 and more than 2% of the total aggregate contributions the organization has received since the PF’s inception • Once classified as a substantial contributor, the classification generally lasts forever Page 15
Who Is a Family Member? The term “family member” includes: - Spouse - Ancestors - Children, grandchildren, and great-grandchildren - Spouses of children, grandchildren, and great-grandchildren - Legally adopted children Does not include : - Brothers, sisters, cousins, aunts, uncles, nieces, nephews, and any more distant relatives Page 16
Certain 20%+ Owners • An owner of mor more than than 20% 20% of a substantial contributor entity is a disqualified person • Ownership is measured differently for different entities: - Co Corporat ation: by combined voting power - Partnership rtnership: by profits interest - Uninc Unincorpor rporated busines ed business: by distributive share of profits - Tr Trust: by beneficial interest Indir Indirect o ect ownership a pos nership a possibility ibility Page 17
35%+ Entities • Co Corporat ation - A corporation is a disqualified person if > 35% of the total combined voting power is owned by certain disqualified persons • Partnership rtnership - A partnership is a disqualified person if > 35% of the profits interest is owned by certain disqualified persons • Trus usts & ts & Es Esta tates - A trust or estate is a disqualified person if > 35% of the beneficial interest is held by certain disqualified persons Indir Indirect o ect ownership a pos nership a possibility ibility Page 18
Stay Alert for Indirect Ownership • For purposes of applying the > 20% and >35% ownership rules: - An individual is considered to own the stock owned by his or her family members - Stock, a partnership interest, or a beneficial interest in a trust that is owned, directly or indirectly, by or for a corporation, partnership, trust, or estate is is consider nsidered d as being as being owned pr ned proportiona oportionately ely by or for its shareholders, partners, or beneficiaries Page 19
Example #1 – Indirect Ownership • XYZ Co. is a substantial contributor to Foundation • John owns 15% of XYZ Co. • Michelle, John’s spouse, owns 10% of XYZ Co. John would like to sell his ranch to Foundation. May he do so? John is considered to own 25% of XYZ Co. (15% + 10%) Since John owns more than 20% of XYZ Co., he is a disqualified person The pr e proposed sale w oposed sale would uld result in a sult in a self-dealing viola self-dealing violation ion Page 20
Example #2 – Indirect Ownership • Marty and Cindy are disqualified persons because they are directors of Foundation • Marty and Cindy collectively own 80% of Parent Co. • Parent Co. owns 90% of Sub Co. Foundation would like to lease office space from Sub Co. May it do so? Collectively, Marty and Cindy are considered to own 72% of Sub Co. through Parent Co. (80% of 90% = 72%). Marty and Cindy indirectly own more than 35% of Sub Co., making it a disqualified person The pr e proposed lease w oposed lease would uld result in a sult in a self-dealing self-dealing violation viola ion Page 21
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