2/23/2012. Background on IRS Regulations. Miscellaneous IRS Issues/Concerns. Update on CASE Counting Guidelines

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1 John Taylor Associate Vice Chancellor for Advancement Services & Interim Campaign Manager North Carolina State University Background on IRS Regulations What s a Quid and Does one Hurt? DAF and Family Foundation Issues Miscellaneous IRS Issues/Concerns Auctions Sponsorships Events Donor Control Gift Myths Update on CASE Counting Guidelines 2 IRS issued final and temporary regulations in 1995 to clarify(?) a clarification issued the previous year that clarified a new section of tax code IRS final FINAL regulations issued on 12/16/96 IRS clarification of the clarified clarification of the final regulations Revised IRS Publication 1771 (3/2002) And then they revised it again 7/2005! AND AGAIN 7/2007; AND AGAIN 3/2008; AND AGAIN 6/2010 Two primary areas of interest/concern: Written acknowledgement requirements; Value of Goods & Services (quid pro quo) 3 Required for all contributions of $250 or more in order to claim a charitable deduction. Canceled checks are no longer sufficient ABOVE this amount but ARE below! Absolutely, l positively, must issue a receipt for cash donations of any amount. Donor is responsible for obtaining. Substantiation to donor must be contemporaneous (typically mailed by 1/31). But must be received by the day they file their taxes. 4 1

2 Written acknowledgments must provide the amount contributed (or description, not value, of noncash property) and a statement indicating whether or not any goods or services were provided in exchange for the gift. Neither the donor SSN nor your tax ID are required Except for gifts of vehicles! Payroll Deductions - Only applies to single deductions of $250 or more. Not required, period, if employer evidences the amount withheld (pay stub) and provides a no goods or services statement (pledge card). No similar rules for other recurring gifts 5 6 Quid Pro Quo receipts are not required when: Fair market value of all benefits received in connection with the payment does not exceed the lesser of 2% of the gift amount or $99 (2012) Gift is $49.50 or more and the cost of all token benefits given does not exceed the IRS low-cost articles minimum of $9.90 (2012) For gifts below $49.50, RULE #1 APPLIES The only benefit the donor received consisted of token items bearing the institution s name or logo Quid Pro Quo receipt required: Gift exceeds $75 where part of the payment is for goods or services received, and part is a contribution. If payment is under $75, QPQ requirements still apply, just no mandated receipt. Disclosure must inform donor that the tax deductible amount is limited to the excess of the amount contributed over the value of goods or services provided. Must also provide donor with a good-faith estimate of the value of such goods or services

3 FMV Defined Low-Cost Defined 80/20 Rule Applications Which comes first, the benefit or the percent reduction? Other seating applications? And what about membership ($75 or less) benefits? Free or discounted admission Free or discounted parking Preferred access to and/or discounts on goods/services Check received from the Charitable Gift Fund of the Triangle Community Foundation, indicating that we should send an acknowledgment to Jane Smith (whose family also has a separate fund at TCF). Who is the legal donor: Jane Smith Charitable Gift Fund The Smith Family Foundation from whom we have previously received gifts Triangle Community Foundation 9 10 It Depends! It actually could be the Family Foundation (no such legal entity, BTW) or the Triangle Community Foundation, but is more likely a gift from a Donor-Advised Fund (Charitable Gift Fund) 11 A donor sends an asset to a qualified tax-exempt arm of an organization AS A DONATION TO THAT ENTITY The assets are now under the name, and control, of that entity The donor contacts the entity and ADVISES them to make a gift to a qualified nonprofit organization The entity is the legal donor BTW, why do donors give this way instead of directly to us? It s partly our fault! 12 3

4 Pledge Payments No Way!!!!!!!!! BTW, this is also true for gifts from Family (private) Foundations but for a different reason self-dealing 13 A charitable pledge is an obligation of the donor to give money or property to a charity at a future time. Where a charity (including a charitable organization of which a donor advised fund is treated as a component part) relieves a donor of a substantial obligation i by satisfying i the donor s pledge, the charity is providing the donor with an impermissible benefit. Accordingly, a donor s charitable pledge may not be fulfilled by a single payment or a series of payments from the charity. In other words it is income to the individual!!! 14 Attorney Statement Pertaining to Donor-Advised Funds: Gifts through donor advised funds should not be applied to satisfy pledges nor linked to a donor [other than perhaps to acknowledge a gift from a foundation at the direction of the donor]. Here are some of the reasons: 1. the donor will take a deduction when the gift to the conduit foundation is made 2. the donor cannot take a double deduction and therefore does not need a receipt 3. if you have recorded a pledge by the donor, then while that pledge is on your records, a gift from a 3 rd party [the conduit foundation] which satisfies that pledge is in effect a gift to the donor by the 3 rd party [lots of cases on this] which in theory may be treated as an improper transfer by the foundation [non-profit] to the donor [non-qualified donee] and may also be treated as income to the donor Although I will not provide an opinion regarding this matter, it would appear that if a donor has a pledge on the books, one way to proceed might be for you to voluntarily cancel the pledge before the gift from the conduit Foundation is made [and without any legally binding agreement tying the cancellation to the Foundation gift]. This could be very risky, however, and the donor is assuming all of the risk. The only safe procedure is to make sure donors understand that a pledge may not be satisfied except by a direct gift. The conduit foundations [e.g. Fidelity, Community Foundations] were established as and intended to be the donee charity and therefore there can be no linkage. In summary, it will be very difficult to make a "safe" gift to a nonprofit through a conduit foundation to satisfy a pledge

5 Do the donors know the rules? They aren t YOUR rules! But do our donors really NOT know the rules? You bet they do, or should (but might not care and should!) What s the determining factor for acceptance of a gift-in-kind? Related use: The GIK must be useful to the institution in fulfilling the purpose or mission for which h the institution i i was granted tax-exempt status Unrelated use: May still qualify as a gift-in-kind (that you can count and the donor can deduct sort of) provided it was given specifically to be sold (charity auction) the Treasury Regulations under section 170 provide that if a donor contributes tangible personal property p to a charity that is put to an "unrelated use", the donor's contribution is limited to the donor's tax basis in the contributed property The term "unrelated use" means a use that is unrelated to the charity's exempt purposes or function... The sale of an item is considered unrelated, even if the sale raises money for the charity to use in its programs

6 Not many specific IRS rules here! But what rules there are can be found at: This is where you will find those previous quotes Purchaser MUST know the FMV in advance and pay in excess Quid pro quo receipt Donor s item must (?) sell NO receipts until AFTER the auction Donor of item may be able to claim a deduction Only if it is a gift (not a service or partial interest) Only if it sells (?) The receipt should only describe the gift Buyer of an item may be able to claim a deduction Only if the FMV was published or known in advance Only if they paid more than that Does not matter if the donated item was not a gift Quid pro quo receipt is required See Federal Register, Vol. 67 No. 80, page Or just go to the IRS documents section of the FundSvcs.org download site! But if you would rather read about it in plain English download d the American Society of Association Executives (ASAE) interpretation of the IRS regulations also at FundSvcs.org All of the above pertain to taxation or not of sponsorship payments. We translate that to mean no gift or gift. If the payment could be considered taxable income, then no gift 23 Calling something a sponsorship does not always mean the sponsor gets something of value in exchange Sponsorships p are typically y encouraged when you want to have an event underwritten You do need to handle standard quid pro quo benefits such as receiving a table or a certain number of tickets to the event Usually, all a sponsor is really looking for is name recognition 24 6

7 Mention of location, phone number, website Value-neutral descriptions, including displays or visual depictions, of the sponsor s product line or services Displays of brand or trade names and product or service listings Logos or slogans that are an established part of the sponsor s identity Mere display or distribution (free or at a cost) of the sponsor s product at a sponsored activity 25 Qualitative or comparative language Price information or other indications of savings or value (John wonders how, then, they can sell the item as suggested on the previous slide?) An endorsement or inducement to purchase, sell, or use the sponsor s service, facility, or product A single message containing advertising and acknowledgement is considered 100% advertising 26 Any payment by any person engaged in a trade or business with respect to which there is no arrangement or expectation that the person will receive any substantial return benefit. Try to keep words out of sponsorship documents that are red flags to the IRS: sponsorship agreement; partnership; joint venture; royalty agreement; advertising

8 Maybe! But you need to be clear and concise in advance Remember, it matters not if the event has been underwritten. What matters is the fair market value of what participants receive The dreaded golf tournament? Quite likely. But entry fee must exceed the value of the round of golf, cart, balls, food/drink, ball towels, etc. $1000/plate dinner? Sure. But a $25 reception? Don t split hairs probably best to call it a: 29 A nonprofit conducts an event where the gift amount is negligible or difficult to determine or it is just too much work to produce receipts. Walk-a-thons and such are good examples The FMV of benefits received equal the price of admission, but some or all of the event expenses are covered by a donor or group of donors. Those donors are making a gift. However, since the attendees are receiving something of equal or greater value, they are not making a gift 30 An event hosted by a completely independent entity, with no involvement by the nonprofit, who sends any left-over cash to a charity. The organizer of such an event is making a gift for the amount sent to charity, but the attendees are not Can that same entity claim a gift-in-kind for all of the food/beverages/preparations? Maybe, but usually only if event was originally sanctioned by the organization. If so, you need proof of what was purchased (reasonableness check), and proof of payment Once a gift always a gift Cannot give a gift back 1099s? What if the gift was matched? Retain gift after a restricted program is canceled Scholarship recipient selection Donor s involvement Certainly cannot have a majority vote Control based on position/power Cannot require institution to take action it otherwise would not take

9 Donation of time or service. While truly a charitable act, only a volunteer s REQUIRED outof-pocket expenses (mileage, parking, supplies, etc.) may be deducted. FASB/GASB may recognize as an asset Expressly forbidden as a charitable donation per IRS Publication 526 Donated advertising space is a service per IRS Revenue Ruling The use of a donor s property by a charitable organization (partial interest IRS Pub 526) Vacation home for charity auction Office space in lieu of rent One-time display of artwork (fractional gifts are the exception and are legal!) Use of software Changes affect new (starting in 2008) multiyear campaigns. Annual, national (VSE), counting report is unchanged those standards have been generally static for 30 years! Changes result in greater transparency Call for breaking out several categories of gifts for separate reporting Allow for the better tracking of trends in fundraising campaigns Recognize and address the more common historical departures from the CASE Standards Irrevocability no longer required too difficult to manage (State laws varied), and donor-unfriendly to request Pledged/Executed (not found) ) during campaign Should consider age and variable valuation: Under 50 - $ Present value Face value Report separately from outright and irrevocable deferred gifts 9

10 May once again count at face value (3 rd edition went strictly present value) Separate goals should be created for these as well You can bring in more! But more here does not mean less there The issue of transparency suggests that you still report the present value (IRS deduction) of these, too, but face value counts towards goal Only the present value counts for VSE purposes Minimum ages should be considered Reasonable expectation that the conditions will be met during the campaign. Examples include Challenges I ll give you mine if you raise the other Capital Commitments If you build it I will pay Appropriate documentation Recorded as, and with, revocable gifts/commitments and thus counted separately Of 43 $1B+ campaigns completed through 1/2009 (when work began on 4 th edition), 17 took 8+ years (one was 12 how fair is that?) 7 was the most common (17), but that had been the CASE suggestion since 1994 Recognition that shorter campaigns are common especially for strategic/targeted initiatives 8 years, though, should be it in order to maximize commitment of volunteers, staff, and donors (avoid burn-out), and keep campaigns honest (aligned with original priorities) Actually, no change you never count government funding from any government for any reason 4 th edition review committee did, however, take the issue up again Acknowledgement that government funds are helpful in achieving strategic goals, can be leveraged to secure private gifts, and recognize that some fundraising staff help secure However: 10

11 Counting emphasis has always been on raising charitable donations from the private sector Impossible to level the playing field when looking at large public research universities compared to small private colleges; not to mention that only half of the States offer a State matching program Thus, securing government funds does not qualify as a private philanthropic act, however we most certainly can and should recognize its value in achieving institutional goals Advertising revenue Alumni membership dues/fees Appraisal costs and other expenses associated with conveying a gift Contract revenues (including clinical trial funds) Contributed services Partial interest Standard discounts on purchases (does not include true bargain sales) Earned income transfer payments from money earning programs/businesses Gifts or pledges counted before; payments on pledges or bequests made before *Applies to Campaigns AND VSE Gifts to social organizations Governmental funds ALL kinds Oral pledges (except telethon!) Written-off pledges Investment t earnings on gifts includes gains/losses on sales of stock/other property Funds from exclusive vendor relationships: Affinity credit cards, pouring rights, royalties, or other contractual obligations Non-gift portion of QPQ transactions Surplus income from ticket-based operations *Applies to Campaigns AND VSE John s listserv FundSvcs Advancement Services Download Site Association of Advancement Services Professionals (AASP Advserv.org) 2007 Advancement Services book CASE Reporting Standards & Management Guidelines - & 10/2011 Clarification IRS Publications 526, 561, & 1771 johnhtaylor@ncsu.edu 44 11