This is the team on the hot-seat-of-the-week. They’re the ones praying for a devastating tornado, locust outbreak, politician meltdown or the return of Jesus. Anything to get them off the front page and out of the crawl.
It’s the IRS office accused of unfairly scrutinizing and delaying applications for tax-exempt status from conservative political organizations like the Tea Party.
I don’t think the low-level staffers in the Determinations Unit were politically motivated. I think they were trying to deal with a mountain of work while understaffed, so they searched for keywords to aggregate applications and handle similar groups with a degree of regularity.
We’ve seen for years the unit is understaffed and struggles to keep up:
— application responses routinely take close to a year and I’ve known groups that waited months longer than that
— an online application project was delayed, and I haven’t heard about it since
— the 2011 loss of tax exempt status for 275,000 charities meant many thousands would reapply, adding monumental burden
Much is being made of the unit’s requests for donor lists, but how a group is funded has long been part of the criteria for determining whether an organization qualifies for tax-exempt status.
I’m looking at an IRS letter from 2001 confirming a client’s exempt status. The agency informs the organization that if its “sources of support, or its character, method of operations, or purposes have changed” there may be a change in the exempt status.
I predict this scandal will lead from IRS Code section 501(c)(4) to 501(c)(13): Cemetery companies owned and operated exclusively for the benefit of their members . . .
Then we’ll learn where the bodies are buried.
Updated June 6, 2013:
IRS released these FAQs on what the Determinations Unit did and why.
The form 990 filing deadline is four-and-a-half months after the close of your fiscal year. If your fiscal year ended on December 31, 2012, then your 990 is due by May 15th. The IRS expresses the deadline as “the 15th day of the fifth month” after close of your fiscal year.
Years ago, someone in a seminar was quite vociferous about how I was wrong to say four-and-a-half months. I couldn’t dissuade him. He wasn’t quibbling over “half a month” leading to the 14th of May.
He didn’t see the equivalence. I was polite.
Ninety-day extensions are granted automatically using form 8868. Typically charities need the extension because their previous year’s audit isn’t finished. Additional 90-day stretches aren’t hard to come by, but are not automatic. Use the same form, part II.
Part VI, question 17 asks you to list the states in which you are required to file form 990. That is a basic part of registration in nearly every state. If you’re required to register before you solicit in a state, odds are you’ll be required to include the 990 with your application.
This is the federal agency’s oblique way of gaining jurisdiction–or legitimacy–to inquire about your compliance with state laws. It’s interesting.
Schedule G, part I, question 3 has you explicitly list the states in which you’re registered to solicit, or have been notified you’re exempt.
I hate to nitpick, but you won’t necessarily be notified by a state if you’re exempt there. In a good number of states, you determine exemption on your own and make no filing. In others you must file for exemption and be approved.
Every charity doesn’t submit this schedule with its 990. You file schedule G if, among other things, you spent more than $15,000 for professional fundraising services or reported more than that in fundraising event gross income. (See form 990, part IV, questions 17-19.)
Form 990 is signed by an officer under penalty of perjury. (See part II.)
There are precious few places where our IRS inquires about your compliance with state laws where you solicit donations.
But they’re alive and thriving.
If you want a fuller explanation of Charity Registration, take a look at the article I published in the journal “Taxation of Exempts.”
CMA Section: I am not your attorney or your accountant. Seek the advice of your professional advisors in all matters of IRS compliance.
Tony’s Guests:Evan Giller: IRS Sale In Aisle 403(b)
Evan Giller, a founding member of the law firm of Giller & Calhoun, explains the IRS’s 50% off-the-penalty sale for 403(b) retirement plans that are not in compliance. Many plans are not up to code and this is the year to fix the problems. We’ll talk about the common mistakes and what to do.
Gene Takagi & Emily Chan: Compensation Clarity
Our regular legal contributors, Gene Takagi and Emily Chan of the Nonprofit & Exempt Organizations Law Group (NEO) answer these questions: how do you determine what’s reasonable compensation for executives? What happens if comp is excessive? What’s the automatic penalty that kicks in if you don’t disclose benefits? Plus, we’ll do a board role play. Let’s see who chairs the meeting. (This is from the Nonprofit Radio vintage archive. Last October was a very good month.)
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If you have big dreams but an average budget, tune in to Tony Martignetti Nonprofit Radio.
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Passed on January 1, 2013, the American Taxpayer Relief Act of 2012 renewed charitable giving from individual retirement accounts (IRAs) for those 70-and-a-half or older.
If you were practicing Planned Giving a few years ago, this is deja vu. All the requirements are the same as in 2010, and there are two add-ons.
This is an IRA distribution, not a rollover. A rollover is a transfer from one retirement account to another retirement account.
What we have here is a distribution to charity. I use the vernacular in my title because that’s what people search for.
From here on I’m calling this a qualified charitable distribution, the exact designation in the Act.
Please recognize that my analysis is based on my reading of the American Taxpayer Relief Act of 2012, without the benefit of IRS rulings, tax court decisions or other official guidance that has yet to come. I am not providing tax, accounting or legal advice. Donors must consult their own advisors to determine whether, and how, to make a charitable gift.
Here are the requirements for a qualified charitable distribution:
Your donor is at least 70 1/2 years old on the date of gift and yours is a 501(c)(3) charity (supporting organizations are not included; nor are donor advised funds)
The IRA is a traditional or Roth
Maximum $100,000 per donor per year in qualified charitable distributions
The distribution is direct from IRA to charity
The full value of the gift would be eligible for an income tax charitable deduction if it were not a qualified charitable distribution
The amount distributed would be included in gross income if it were not a qualified charitable distribution
Numbers 1-4 are straightforward and what I recommend using in promotional materials. Also drop in these two points if you have space:
First, the amount of the gift counts toward an IRA required minimum distribution, or RMD. Lots of people (though not as many as in 2007 and years before) are required to take more from IRAs than they need. This provision helps them reduce that dilemma.
Second, the amount of the distribution to charity is not included in federal gross income, so it’s exempt from federal income tax.
Important Fine Print
Numbers 5 and 6 have nuances that are more appropriate to an article than a blog. They are the primary reasons your materials include a disclaimer that you’re not providing tax or legal advice and donors must consult their own advisors. The first four are secondary reasons for your disclaimer, because there are ins-and-outs in those, too.
I will make an important point on #5. It precludes using this to buy a ticket to your dinner or an auction item; buy anything from your charity; or fund a charitable gift annuity or charitable trust. None of these are 100% deductible for federal income tax purposes. Raffle tickets are precluded because no part of the amount paid is a charitable contribution for federal income tax purposes. (They may be deductible losses if the person has gambling winnings, but we’re not going there.)
New From 2010
The two additions from the 2010 version are (subject to 1-6 above):
— Your donors can can make qualified charitable distributions before February 1 and count them toward 2012
— If donors took IRA distributions in December, they can count any portion of them as 2012 qualified charitable distributions. Their gifts need to get to you before February 1 to grab this opportunity. (You may disregard #4 for this.)
A Download For You
Here’s an easy one-pager I put together for you to share with your board; use in promo materials; excerpt for an email blast; carve up for a newsletter sidebar; and generally use for your charity as you like.
Getting Donors Started
It’s easy. They tell their IRA custodian they want to make a qualified charitable distribution to your charity. Share your tax ID number. Donors will need it to fill out a form.
Take advantage of this immediate-cash planned gift. It’s a valuable way to start the year and gives you a timely, newsy reason to talk to prospects.