The IRS recently issued Form 8940, Request for Miscellaneous Determination, in response to the concern expressed by practitioners that there was no published or uniform way in which a tax-exempt organization could make certain requests of the IRS or take various actions.

Now, tax-exempt organizations have a mechanism to obtain advance IRS approval of particular activities, request determinations (other than the organization's initial determination of tax-exempt status) and request exemption from the Form 990 annual filing requirements. Out of the nine uses for Form 8940, six relate specifically to private foundations. Accordingly, this form will be of particular interest to private foundation managers as well as to public charities that experience difficulty in meeting the public support test.

Form 8940 may specifically be used for the advance approval of:

  • Private foundation "set-asides" (to treat funds set aside for a specific project as a qualifying distribution in the year of the set-aside rather than in the year the funds are actually paid)
  • Private foundation voter registration activities
  • Private foundation scholarship procedures
  • The determination that a potential contribution from a particular donor constitutes an "unusual grant" (and thus is excluded from certain public support calculations)

In addition, Form 8940 may be used to request a change in (or initial determination of) the Type of a Section 509(a)(3) supporting organization (an organization that qualifies as a public charity because of its support of a particular type of tax-exempt organization).

Finally, Form 8940 may be used to request a reclassification of foundation status, including a voluntary request from a public charity for private foundation status or to request the termination of private foundation status.

The instructions for Form 8940 set forth both the required supporting documentation and the required user fee to be submitted in connection with each request submitted on the form. The form and instructions are available at http://www.irs.gov/.