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![Time to dispose of
excess business holdings
• 90 days if foundation buys
• 5 years if foundation
receives as a gift [and can
request extension for
another 5 years if unusual
circumstances]](https://image.slidesharecdn.com/privatefoundationsanddonoradvisedfunds-141118144903-conversion-gate01/85/Private-foundations-and-donor-advised-funds-69-320.jpg)
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Private foundations and donor advised funds
1. Private foundations and donor advised funds hold money and distribute grants to charities. Private foundations are the dominant charitable planning vehicles, holding 81% of assets compared to 3% for donor advised funds. 2. Private foundations are typically funded by an individual, family, or corporation. They make grants to charities rather than directly conducting charitable activities. Private foundations are subject to a 2% tax on net investment income and strict rules around insider benefits and payouts. 3. Donor advised funds are accounts housed within public charities. They offer donors similar tax benefits to private foundations with less complexity and cost. However, donors do not have legal control over grants from donor advised funds.
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Private foundations and donor advised funds
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- 3. Private foundations (non-operating) anddonor advised funds hold money and distribute grants
- 4. 78% 14% 5% 3% Assets 81% 3% 14% 2% CharitableDistributions Private Foundations (non-operating) Charitable Remainder Trusts Donor Advised Funds Charitable Lead Trusts Private Foundations are the Dominant Charitable Planning Vehicles Combining 2010 data from IRS Statistics of Income (PF, CRT & CLT) and National Philanthropic Trust (DAF)
- 7. Psychology’s “terror managementtheory” suggests a defense to mortality reminders is to create symbolic immortality (one’s name, impact, story will live on)
- 8. Dead • Josiah K.Lilly (1948) • Edsel Ford (1943) • Robert Wood Johnson II (1968) • W.K. Kellog (1951) • Andrew W. Mellon (1937) • John D. Rockefeller (1937) Alive • Lilly Endowment • Ford Foundation • Robert Wood Johnson Foundation • W.K. Kellog Foundation • Andrew W. Mellon Foundation • The Rockefeller Foundation
- 9. The rules ofa private foundation can be permanent This differs from leaving an inheritance or company where later generations make all rules
- 10. A private foundationallows donor and descendents to control the foundation assets and charitable payouts indefinitely
- 11. A private foundation can transmit valuesby involving descendents in specific charitable causes for many generations
- 12. or Charitable Trust Understate law create a… Obtain federal tax exempt status Initial Application 1023 Annual filing 990-PF Create a Private Foundation Flexible; lower UBIT rates More founder control; foreign operations eliminate deductibility for corporate donors Nonprofit Corporation 1. 2.
- 13. Private foundations canbe large, but most aren’t 26% 39% 28% 4% 3% Asset Size: Non-Operating Private Foundations $1 under $100,000 $100,000 under $1MM $1MM under $10MM $10MM under $25MM $25MM or more Source: IRS Statistics of Income for 2010. Domestic Private Foundations: Number and Selected Financial Data, by Type of Foundation and Size of End-of-year Fair Market. Excluding those not reporting any assets
- 14. Foundation board • Oftenthe donor and close family members • Can establish rules for succession – Descendents who meet certain criteria – Unequal voting rights allowable – Junior board for minors advising on small gifts
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- 16. Private Foundations 2: PFs v.Public charities
- 17. Three types ofcharitable organizations Public charity Supporting organization Private foundation
- 18. Public Charity • Publiclysupported OR • Operates ongoing traditional charitable activity (e.g., hospital, church, school) Private Foundation • Default if charity not a public charity or supporting organization
- 19. Typical private foundation • Fundedby one person, family, or corporation • Makes grants, rather than directly running charitable activity • Expenditures funded by investment income
- 20. Typical private foundation • Fundedby one person, family, or corporation • Makes grants, rather than directly running charitable activity • Expenditures funded by investment income Traditional charity (e.g., operates church, hospital, school)
- 21. Typical private foundation • Fundedby one person, family, or corporation • Makes grants, rather than directly running charitable activity • Expenditures funded by investment income Publicly- supported charity Atleast1/3of totalsupport1 fromsmall donors2 1Includesgiftsandinvestmentincomeoverlast4years.Largeunusualgiftsfromoutsiderscanbe excluded. 2Giftsfromthosegiving≤2%oftotal supportandanysupportfromgovernment
- 22. At least 1/10of total support1 from small donors2 Typical private foundation • Funded by one person, family, or corporation • Makes grants, rather than directly running charitable activity • Expenditures funded by investment income operated to attract new public or government support Smells like public charity “facts and circumstances” that it is a public charity 1Includesgiftsandinvestmentincomeoverlast4years.Largeunusualgiftsfromoutsiderscanbe excluded. 2Giftsfromthosegiving≤2%oftotal supportandanysupportfromgovernment
- 23. Typical private foundation • Fundedby one person, family, or corporation • Makes grants, rather than directly running charitable activity • Expenditures funded by investment income Atleast1/3oftotalsupport1 from memberships+charitable operations+smalldonors2 No more than 1/3 of total support1 from investment income 1 Includesgiftsandinvestmentincome.Largeunusualgiftsfrom outsiderscanbeexcluded 2Includessupportfromgovernment Public charity by receipts
- 24. Private Foundations 2: PFs v.Public charities
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- 26. Tax rules forprivate foundations
- 27. Tax on net investmentincome • 2% tax on net investment income • Drops to 1% If charitable grants ≥ assets X (avg. % payout in the last five years) + 1% of net investment income
- 28. Gifts to privatefoundations also have lower income-based deductibility limits
- 29. Current Value: $25 1990Paid $1 Long-term capital gain (special election) Tangible personal property (“unrelated” use) CashOrdinary income property Inventory Short-term capital gain Public Charity Public Charity
- 30. Current Value: $25 1990Paid $1 Long-term capital gain (no special election) Tangible personal property (“related” use) CashOrdinary income property Inventory Short-term capital gain Public Charity Private Foundation (non-operating)
- 31. Current Value: $25 1990Paid $1 Long-term capital gain (any) Tangible personal property (“related” or “unrelated” use) Current Value: $25 1990 Paid $1 Private Foundation (non-operating) Private Foundation (non-operating)
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- 34. Charitable Purposes To protectcharitable distributions, many transactions are prohibited or penalized Insider Benefits
- 35. • Self-dealing • Failureto distribute income • Excess business holding • Investments that jeopardize charitable purpose • Taxable expenditures Insider Benefits Charitable Purposes
- 36. IRS punishments for transactionsthat break the rules include: • Initial tax (10%- 30%) • Additional tax if transaction not corrected (25%- 200%) • Revoking exemption
- 37. Who is aninsider (A.K.A. a “disqualified person”)? Insider Benefits Charitable Purposes
- 38. Insider or “DisqualifiedPerson” • Officer, director, trustee, or any employee with responsibility for the act • Ancestor, spouse, descendent, or spouse of descendent of above • Corporation, trust, or partnership owned 35% or more by above • Substantial contributor >2% of all contributions from foundation start to end of tax year (+>5K total contributions) Grantors of a charitable trust automatically qualify
- 39. • Self-dealing • Failureto distribute income • Excess business holding • Investments that jeopardize charitable purpose • Taxable expenditures Insider Benefits Charitable Purposes
- 40. Self-Dealing • Sell, exchange,lease, transfer or loan money, goods, services, property, or facilities to a disqualified person • Paying a government official
- 41. Bargain sale Suppose a disqualifiedperson is willing to sell a $200,000 property to the foundation for $10,000?
- 42. Bargain sale Suppose adisqualified person gives a $200,000 property (with a recent $12,000 mortgage) to the foundation? (Payment of the insider’s debt is a benefit, but allowed if debt is 10+ years old)
- 43. Self-Dealing Penalty • Disqualifiedperson taxed 10% of transaction (+5% tax on foundation manager who knowingly participates) • Must correct in 90 days of IRS notice else disqualified person taxed 200% (+50% tax on foundation manager)
- 44. Free gifts tothe foundation of money, property, or use of money or property are allowed
- 45. Foundation can hirean insider to perform necessary professional or managerial services (called “personal services”) if compensation is reasonable • Investment advice • Legal work • Accounting/tax services • Banking • Administrative assistance The Council on Foundations’ Foundation Management Report contains compensation information for various positions
- 46. Reimbursements of reasonableand necessary expenses such as meals and travel • Travel to foundation board meetings for board members (and junior board members who perform some functions in that role) • Travel to grantees or potential grantees sites to investigate current or potential awards
- 47. Private foundations allow forunlimited multi-generational, nearly tax-free (1%-2%) control of wealth, with ongoing ability to provide insider travel and employment for professional/ management services, and limiting charitable activities to founder’s desires
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- 50. • Self-dealing • Failureto distribute income • Excess business holding • Investments that jeopardize charitable purpose • Taxable expenditures Insider Benefits Charitable Purposes
- 51. The foundation must distributeat least 5% of non-charitable net assets under its control by the end of the following tax year
- 52. Non-charitable net assetsexcludes charitable assets and assets not yet under foundations’ control No charitable assets: used for charitable purposes, such as paintings on loan to a museum, or office furniture used to manage the foundation No assets not yet under foundation’s control: a right to receive property after death, after estate administration, or after payment of a pledge
- 53. 5% payout is reducedby investment tax and unrelated business income tax
- 54. Administrative expenses for grant-makingor fundraising (but not investment management) also count as charitable expenditures towards the 5% minimum required payout
- 55. 5% can bespent on grants to charity including designated purpose funds, but NOT to • Another non-operating foundation • Charity controlled by the foundation or disqualified persons • Donor advised funds
- 56. Buying or improvingassets used directly in charitable purposes also count towards 5%
- 57. Can the foundation postponepayouts to save up for a big gift?
- 58. Yes. If… • Itis for a project better accomplished through set aside than by immediate payout (e.g., constructing a building) • Pay out within 60 months of first set-aside
- 59. If the foundation makesa big gift, will the amount above 5% carry over to future years? Yes. Gifts above 5% can carry forward for up to 5 years.
- 60. • Foundation paysa tax of 30% of required amount not distributed • Additional 100% if not corrected in 90 days of IRS notice Penalty for Failure to Distribute
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- 63. • Self-dealing • Failureto distribute income • Excess business holding • Investments that jeopardize charitable purpose • Taxable expenditures Insider Benefits Charitable Purposes
- 64. What’s the problemwith excess business holdings?
- 65. • Donor stillcontrols the business even though he has taken a charitable deduction • Donor decides if any profit is distributed to the foundation • Donor controls his (and other’s) compensation at the business Foundation
- 66. Foundation + Insiders 20% Add IfAnother Has Effective Control 15%Others 65% A private foundation cannot own more than 2% if the foundation and all disqualified persons combined own more than 20% of a company (35% if someone else has effective control)
- 67. • Charitable functionsuch as a school or hospital • Business run by unpaid volunteers or selling donated items • Business for beneficiaries /employees such as a museum cafeteria Full ownership of a charitable business is allowed
- 68. Full ownership is allowedif business is passive – simply collecting dividends, interests, royalties, or real estate rent without leverage
- 69. Time to disposeof excess business holdings • 90 days if foundation buys • 5 years if foundation receives as a gift [and can request extension for another 5 years if unusual circumstances]
- 70. • Foundation paysa tax of 10% of highest business holdings above maximum • Up to 200% if not corrected in 90 days of IRS notice Excess Business Holding Penalty
- 71. • Self-dealing • Failureto distribute income • Excess business holding • Investments that jeopardize charitable purpose • Taxable expenditures Insider Benefits Charitable Purposes
- 72. Crazy investment gambles can jeopardizethe charitable purpose
- 73. Nothing is automatically disqualified, but specialattention given to options, margin trading, short selling, commodity futures, oil/gas interests Jeopardizing investments are excessively risky in the context of entire portfolio (“fails to exercise ordinary business care and prudence”)
- 74. High risk investments areallowed if they are primarily charitable • Needy student loans • Low-income housing • Urban renewal
- 75. • Foundation paysa tax of 10% of the jeopardizing investment (manager pays 5%, up to $10k) • Another 25% if not corrected within 90 days of IRS notice (manager pays another 5%, up to $20k) Jeopardizing Investment Penalty
- 76. • Self-dealing • Failureto distribute income • Excess business holding • Investments that jeopardize charitable purpose • Taxable expenditures Insider Benefits Charitable Purposes
- 77. Taxable expenditures • Non-charitablepurposes • Political campaigning or lobbying (except non- partisan research) • Grants to individuals except – Travel, study, or similar if IRS approves non-discriminatory award process – Grants to impoverished persons or disaster victims – Prizes/awards to recognize achievement with no restrictions on use of funds
- 78. • 20% ofthe taxable expenditure (manager pays 5% up to $10k if no reasonable cause) • Another 100% if not corrected within 90 days of IRS notice (manager pays another 50%, up to $20k) Taxable Expenditures Penalty
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- 80. Private Foundations 7: v. DonorAdvised Funds
- 81. What if creatinga private foundation is just too much hassle?
- 82. Donor Charities The DonorAdvised Fund Donor’s DAF $ $ Sponsoringcharityhaslegal ownershipofDAFs $ Gifts are to a public charity, because charity has legal ownership Charity follows donor advice, otherwise no one would give again $
- 83. Donor advised fund •No minimum payout • Minimal setup & administrative expense • Expected control of grants • Investment management sometimes allowed • Legislatively new • High income limits & valuations • No tax on earnings Private foundation • 5% minimum payout • Significant setup & administrative expense • Legal control of grants • Investment management always allowed • Legislatively stable • Low income limits & valuations • 1% or 2% tax on earnings
- 84. End of yearDAF contributions pull forward deductions Many use DAFs as a short- term conduit to take an earlier tax deduction for expected future gifting to charities
- 85. DAF Limitations • Nobenefits (grants, loans, compensation, or indirect benefit) to donor, family, or organizations 35%+ controlled by these. Ex: no major donor event tickets • No excess business holdings (same rule as private foundations) • No distributions to private foundations (rare exceptions) or individuals
- 86. Private Foundations 7: v. DonorAdvised Funds
- 87. Help me HERE convince mybosses that continuing to build and post these slide sets is not a waste of time. If you work for a nonprofit or advise clients and you reviewed these slides, please let me know by clicking
- 88. All slides are takenfrom the book Visual Planned Giving Available from Amazon.com
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