The 2016 election cycle made front page news of certain failures in compliance by both the Bill, Hillary & Chelsea Clinton Foundation and The Donald J. Trump Foundation. Every new year brings new goals and, for every family with a family foundation, one goal for 2017 should be ensuring that your foundation is in full compliance with applicable state and federal rules. Many family foundations operate without the benefit of professional staff, and try to minimize administrative expenses by limiting use of outside professionals such as accountants and attorneys. Without professional oversight, however, it is not uncommon for a foundation to fall out of strict compliance with one or more rules over time. Below is a summary of the common steps needed to keep your foundation in compliance.
As odd as it may seem, even a charitable contribution of $250 to an individual’s own family foundation must be substantiated by a contemporaneous, written acknowledgment that contains the following information:
- Name of the organization;
- Amount of cash contribution;
- Description (but not value) of non-cash contribution;
- Statement that no goods or services were provided by the organization, if that is the case;
- Description and good faith estimate of the value of goods or services, if any, that the organization provided in return for the contribution; and
- Statement that goods or services, if any, that the organization provided in return for the contribution consisted entirely of intangible benefits, if that was the case.
In order to be considered contemporaneous for 2016 contributions, a written acknowledgment should be prepared and delivered no later than April 15, 2017. In future years, the foundation should set up procedures, such as calendar alerts, to ensure these acknowledgements are provided annually. Most public charities make it a practice to send their written acknowledgements by January 31st of each year. The donor should retain the contemporaneous, written acknowledgment in his or her files until the statute of limitations has run on the return claiming the contribution (generally, three years from date of filing but may be six years in certain circumstances).
2. Review Your Recordkeeping.
Family foundations should consider whether to adopt a document retention policy so that the foundation has consistent record keeping practices. Smaller foundations that elect not to adopt a formal document retention policy should take an inventory of their records and ensure they have the following documents at a minimum:
- A copy of its Form 1023, Application for Recognition of Exemption Under §501(c)(3) of the Internal Revenue Code, including all attachments thereto;
- A copy of the foundation’s IRS determination letter;
- Copies of Form 990-PF, Return of Private Foundation or Section 4947(a)(1) Trust Treated as Private Foundation, as filed; and
- Such permanent books of account or records as are sufficient to establish its items of gross income, receipts and disbursements, and to substantiate the information required for its annual Form 990-PF, Return of Private Foundation or Section 4947(a)(1) Trust Treated as Private Foundation, for any years where the statute of limitations has not yet run (generally, three years from date of filing but may be six years in certain circumstances).
3. Maintain List of Foundation Managers and Disqualified Persons.
Section 4941 of the Internal Revenue Code imposes a series of taxes on disqualified persons and foundation managers who engage in certain types of prohibited “self-dealing” transactions with a private foundation. The term “self-dealing” includes:
- Direct or indirect sale, exchange or leasing of property between the private foundation and disqualified persons;
- Lending of money or other extension of credit between a private foundation and a disqualified person;
- Furnishing of goods, services or facilities between a private foundation and a disqualified person;
- Payment of compensation by a private foundation to a disqualified person, unless such compensation is compensation for personal services and is reasonable and not excessive;
- Transfer to, or use by or for the benefit of, a disqualified person of the income or assets of a private foundation; and
- An agreement by a private foundation to make any payment of money or other property to a government official during the period of his or her government service.
To ensure that the family foundation is able to identify potential self-dealing issues before they happen, the foundation should maintain a list of foundation managers and disqualified persons and review that list annually, making any updates as necessary.
- “Foundation managers” include any officer, director or trustee of a private foundation (or any individual having powers or responsibilities similar to those of officers, directors or trustees).
- “Disqualified persons” includes substantial contributors to the foundation and foundation managers, as well as members of the family of disqualified persons and entities in which disqualified person or family members hold a sufficient interest (20% or 35%, depending on the type of entity).
- A substantial contributor includes any person who contributed or bequeathed a total amount of more than $5,000 to the private foundation if the amount is more than 2% of the total contributions and bequests received by the foundation from its creation up through the close of the tax year of the foundation in which the contribution or bequest is received from that person. For a private foundation formed as a trust, a substantial contributor includes the creator of the trust regardless of the amount he or she contributed. As a general rule, once a person is a substantial contributor to a private foundation that person remains a substantial contributor.
- Members of the family are confined to spouses, ancestors, children, grandchildren and great-grandchildren, as well as the spouses of children, grandchildren and great-grandchildren.
4. Don’t Pay Rent to a Disqualified Person.
It is common for many foundations to operate from the family’s home or from the business office of a family member. However, §4941 of the Internal Revenue Code bars a foundation from paying any rent to a disqualified person, regardless of whether the amount of such rent would be reasonable. A disqualified person may permit a private foundation to use his or her property without charge.
Even if your foundation is relatively small, make sure to satisfy the annual distribution requirements. Under §4942 of the Internal Revenue Code, a private foundation is required to make “qualifying distributions” equal to 5% of the excess of the aggregate fair market value of all assets of the foundation (other than those used directly in carrying out the foundation's exempt purposes) over the acquisition indebtedness with respect to such assets, reduced by the taxes imposed on net investment income and unrelated business taxable income. For this purpose, the aggregate fair market value of the foundation's assets is generally computed as an average of the monthly fair market values of cash and marketable securities on hand, plus the fair market value of all other assets computed as of a consistent valuation date occurring in the taxable year. Excess qualifying distributions made in any one taxable year may be carried over to reduce the amount of required distribution in the five tax years immediately following that tax year.
In general, “qualifying distributions” consist only of amounts the foundation has paid or set aside to accomplish one or more of its exempt purposes or amounts paid for administrative expenses that are reasonable and necessary to accomplish or support qualified activities. Reasonable administrative expenses include overhead costs such as office supplies, telephone charges, certain legal and accounting fees, training and professional development, costs of publication of an annual report, and reasonable travel expenses associated with foundation business.
6. Put Systems in Place to Make Sure You Know Your Donees.
Make sure you know the exact charitable status of any donees. The rules governing grants vary between types of recipients. As a general rule, grants to a donee other than a public charity will require additional diligence and documentation before that grant can be made. For example:
- Grants to another private foundation, certain types of supporting organizations and for-profit entities require compliance with the expenditure responsibility requirements.
- Grants to foreign organizations may only be made if the organization has a U.S. determination letter or if the equivalency test has been satisfied. Alternatively, a private foundation contemplating a grant to a foreign organization may elect to comply with the expenditure responsibility requirements. Additionally, any grants to foreign organizations must comply with anti-money laundering rules.
Under §4945 of the Internal Revenue Code, to exercise “expenditure responsibility,” the foundation must use all reasonable efforts and establish adequate procedures (i) to assure that its grant is spent solely for the purpose for which made, (ii) to obtain full and complete reports from the grantee on how the funds are spent, and (iii) to make full and complete reports with respect to such expenditures to the IRS. The required procedures include a pre-grant inquiry to assure that the grantee will utilize the grant for proper purposes and the execution of a written grant agreement requiring the grantee to maintain records and submit complete reports. Because these rules cannot be satisfied after the fact and generally require legal advice, it is important that, before making any grant, the foundation takes steps to confirm the donee’s charitable status and document that status in their files. If the proper steps are not taken before the grant is made, the foundation may have an obligation to try to recover the grant and take other steps to remediate.
Foundations should also be mindful that grants to individuals may only be made as scholarships for travel, study or other similar purposes, which requires pre-approval by the IRS, or under the narrow exception for relief of human suffering. As a general rule, a foundation should not make grants to individuals without first seeking advice of counsel.
7. Select the Correct Donor.
It is important to remember a family foundation cannot satisfy a pre-existing pledge made by a disqualified person to a public charity because, to the extent that the foundation relieves the disqualified person of the financial obligation, he or she has received a prohibited personal benefit. It is imperative that, if it is intended for a pledge to be paid out of the foundation, the pledge be made in the foundation’s name from the outset.
8. Check Your Foundation Investments.
With a limited exception for program related investments, §4944 of the Internal Revenue Code imposes an excise tax on any private foundation and its managers “if a private foundation invests any amount in such a manner as to jeopardize the carrying out of any of its exempt purposes...” A jeopardizing investment is generally considered to be an investment lacking in the requisite standard of ordinary business care and prudence under the facts and circumstances prevailing at the time of making the investment. No category of investment is treated as a per se jeopardizing investment. Rather, foundation managers must take into account a variety of factors, including the expected return (including both income and gains), the market risks and the need for diversification within the investment portfolio. The foundation managers should consider these factors both when making the initial investment and in reviewing the investment portfolio from time to time.
It is important to remember that the risk profile of your foundation is not the same as your individual risk profile. Many high net worth individuals become wealthy through highly concentrated, high risk investments; thus, have a high risk tolerance. However, a foundation’s assets must be managed in a way that best preserves its assets for use to further its exempt purposes; thus, has a more conservative risk profile.
If your foundation maintains investments outside of cash and a diversified portfolio of marketable securities, then your foundation should consider the adoption of an investment policy. An investment policy allows a foundation to identify its objectives and set forth metrics for analyzing whether those objectives are being met. An investment policy will generally set forth:
- A statement of purpose;
- Guidelines regarding division of responsibilities, including responsibilities that will be delegated to a committee, foundation staff or agents such as investment advisors;
- A description of specific investment goals, including a targeted rate of return;
- A description of the appropriate risk profile for investments;
- Guidelines regarding the diversification of assets;
- Guidelines regarding asset allocation between identified asset classes;
- Guidelines regarding the selection of appropriate investments, including any positive or negative screens that must be applied to all or any portion of investments;
- Guidelines regarding payout or spending policy objectives; and
- Criteria for evaluating the performance of individual investments, as well as the investment portfolio as a whole.
9. Comply with Any State Solicitation Registration Requirements.
Many states regulate the solicitation of their residents for charitable donations and require organizations to register with the state before the organization can request donations from residents. Most private foundations never have to worry about state charitable solicitation registrations because, under the laws of most, if not all, states, private foundations that do not solicit from the general public do not need to register. However, any private foundation considering the solicitation of donations should be sure to check charitable registration requirements before undertaking such solicitations as the laws vary from state to state, and some states have very strict registration requirements. For example, many jurisdictions require registration before the solicitation is made even if no amounts are received. The Donald J. Trump Foundation is under investigation in New York State for failing to register before soliciting outside donations in excess of $25,000 in any year.
10. Have Annual Meetings.
If a foundation’s governing documents require its officers, directors or trustees to meet on a regular basis, compliance with this formal requirement is a sound governance practice. For family foundations that have no legal requirement to hold meetings, particularly those formed as trusts, it may seem unnecessary to hold formal annual meetings. However, an annual meeting offers the perfect opportunity for the family to review the foregoing each year and ensure that their foundations remain in compliance.