Jen: This is the PKF Texas Entrepreneur’s Playbook. I’m Jen Lemanski, and I’m back again with Annjeanette Yglesias, one of our tax managers and a member of our not-for-profit team. Annjeanette, welcome back to the Playbook.

Annjeanette: Thanks, Jen. It’s good to be here.

Jen: So, not-for-profit… you work with different organizations, and I think the most popular type of not-for-profit organization is 501(c)(3), correct?

Annjeanette: Yes, that’s correct. There are over 30 different types of nonprofit organizations, according to the internal revenue code, and 501(c)(3) organizations are definitely the most popular. Those organizations have purposes for educational, scientific, religious, prevention of cruelty to animals—those types of organizations fall within 501(c)(3).

Jen: So, are there any limitations that we need to be aware of for not-for-profit organizations?

Annjeanette: Well, that really depends. 501(c)(3) organizations can fall into two categories: either a public charity or a private foundation. Private foundations definitely have more restrictions associated with them than public charities do.

Jen: So, there’s different tax rules for each type of entity, correct?

Annjeanette: That’s correct, and the tax rules depend on whether the 501(c)(3) is a public charity or a private foundation, because private foundations have more restrictive activity rules than public charities do.

Jen: And what type of restrictions are there?

Annjeanette: For example, the IRS requires that private foundations distribute a certain amount of their funds annually, and, also, private foundations are subject to a 1% to 2% excise tax on their net investment income. Those two rules are not applicable to public charities. Also, private foundations are restricted in the amount of voting stock that they can hold in a private company, as well as there are several rules that the IRS imposes regarding self-dealing and self-dealing really deals with substantial contributors and any interested persons of the organization.

Jen: So, does the 990 come into play? I would assume that they know the different limitations, but that’s where they call you, right?

Annjeanette: That’s right. If any organization has a question on if they have to follow any of these restrictions, they can certainly call us, and we can walk them through it.

Jen: Perfect. Well, it sounds like there’s a lot more to talk about, and we’ll get you back.

Annjeanette: Sounds good.

Jen: To learn more about how PKF Texas can help your not-for-profit organization, visit PKFTexas.com/notforprofit. This has been another Thought Leader production brought to you by PKF Texas The Entrepreneur’s Playbook. Tune in next week for another chapter.

The Houston Business Journal published an article on their website co-authored by PKF Texas Tax Practice Leader and Director, J. Del Walker, CPA, and Tax Manager, Annjeanette Yglesias, CPA. The article discusses the differences between a private foundation (PF) and the donor advised fund (DAF), which impact family philanthropy efforts.

So, what are the differences? Walker and Yglesias primarily define the two terms:

“A private foundation is an IRC Section 501(c)(3) organization that has one primary source of funds, typically either from an individual/ family but may also be a business. This discussion focuses on private non-operating foundations, otherwise known as grant-making foundations.

A donor advised fund (DAF) is a separately identified fund or account that is maintained and operated by an IRC Section 501(c)(3) organization (public charity). Once the donor contributes to the DAF, the managing organization legally controls the funds going forward. The donor only maintains advisory privileges with respect to amount and recipient of distributed funds.”

The co-authors then present various things to consider when deciding which is better suited for donors and philanthropic goals:

  • Formation,
  • Administrative considerations,
  • Tax implications to donors
  • and more.

For the full article, visit www.bizjournals.com/houston/news/2018/10/09/family-philanthropy-tips-on-private-foundation-vs.html

To learn more information, contact J. Del Walker (dwalker@pkftexas.com) or Annjeanette Yglesias (ayglesias@pkftexas.com).

IRS rules governing private foundations are complex and include many exceptions, which is why your foundation needs to write and follow a detailed conflict-of-interest policy. Taking this proactive step can help you avoid potentially costly public and IRS attention.

Casting a Wide Net
Conflict-of-interest policies are critical for all not-for-profits. But foundations are subject to stricter rules and must go the extra mile to avoid anything that might be perceived as self-dealing. Specifically, transactions between private foundations and disqualified persons are prohibited.

The IRS casts a wide net when defining “disqualified persons,” including substantial contributors, managers, officers, directors, trustees and people with large ownership interests in corporations or partnerships that make substantial contributions to the foundation. Their family members are disqualified, too. In addition, when a disqualified person owns more than 35% of a corporation or partnership, that business is considered disqualified.

Avoiding Dangerous Transactions
Prohibited transactions can be hard to identify because there are many exceptions. But, in general, you should ensure that disqualified persons don’t engage in the following transactions with your foundation:

  • Selling, exchanging or leasing property,
  • Making or receiving loans or extending credit,
  • Providing or receiving goods, services or facilities, or
  • Receiving compensation or reimbursed expenses.

Disqualified persons also shouldn’t agree to pay money or property to government officials on your behalf.

Facing the Consequences
What happens if you violate the rules? Your foundation’s manager and the disqualified person may be subject to an initial excise tax (5% and 10%, respectively) of the amount involved and,if the transaction isn’t corrected quickly, an additional tax of up to 200% of the amount. Although liability is limited for foundation managers ($40,000 for any one act), self-dealing individuals enjoy no such limits. In some cases, private foundations that engage in self-dealing lose their tax-exempt status.

Private foundations that run afoul of the IRS usually have good intentions. You may assume, for example, that transactions with insiders are acceptable so long as they’re fair or benefit your foundation. Unfortunately, this isn’t the case. Most activities defined by the IRS as self-dealing — regardless of whom or what they reward — are off-limits.

If you’re unsure about whether a transaction might violate IRS rules, please contact us.