The February issue of this newsletter

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1 THE PPC NONPROFIT UPDATE, MARCH 2015, VOLUME 22, NO. 3 THE PPC NONPROFIT UPDATE The Rest of the Story... on Properly Reporting Activities with Related Entities The February issue of this newsletter began a discussion on properly reporting activities with related entities. That article explained that by shifting from a mindset of competing with other nonprofit organizations for grant funds, which are shrinking in amount, to cooperating with other organizations to achieve its mission, a nonprofit organization can create substantial value for the organizations and the people they serve. However, there are some financial reporting challenges that must be overcome when an organization enters into such arrangements with other organizations. The answers to three questions determine which accounting standards the reporting organization uses to report financial information about a cooperative activity. Last month s article addressed the first question was a new legal entity created to carry out the cooperative activity? This article will conclude the series by addressing the two remaining questions: z Does the reporting organization control the cooperative activity? z What type of legal entity is the cooperative activity? Does the Reporting Organization Control the Cooperative Activity? The guidance used to determine whether the reporting organization controls the cooperative activity is dependent upon an initial assessment of whether the legal entity in which the cooperative activity is housed is a for-profit entity or a nonprofit organization. The definition of a not-forprofit organization from the FASB ASC master glossary is used to determine whether the cooperative activity is also a nonprofit organization. For cases that aren t clear, paragraph 3.60 of the AICPA Audit and Accounting Guide, Not-for-Profit Entities (Audit Guide), provides helpful guidance. It states FinREC s opinion that often in cases in which a nonprofit organization has an interest in an entity that is either a nonprofit corporation or a nonprofit membership corporation, that entity will meet the definition of a nonprofit organization. In cases in which the entity has a noncorporate structure (such as a partnership, limited liability partnership, or similar entity), that entity often In this Issue: The Rest of the Story... on Properly Reporting Activities with Related Entities Websites of Interest Relying on Opinion of Counsel Tax Briefs This newsletter is also available online. Please call (800) , or order online at

2 2 THE PPC NONPROFIT UPDATE, MARCH 2015, VOLUME 22, NO. 3 won t meet the definition of a nonprofit organization [either because (a) of the existence of ownership interests; (b) the entity provides lower costs or other economic benefits directly and proportionally to the owners, members, or participants; or both (a) and (b)]. Exhibit 3-2 in the Audit Guide contains a chart that shows where to find the guidance (in the FASB Codification and the Audit Guide) for determining if there is a control of the cooperative activity. In addition to using that guidance, the reporting organization also should consider whether it controls the cooperative activity by contract. If the cooperative activity is a for-profit entity and a contractual management agreement has a term that is either the life of the cooperative activity or a period of ten years or more, the reporting entity should look to the Consolidation of Entities Controlled by Contract subsections of FASB ASC to determine if it has a controlling financial interest in the cooperative activity. (Although written for physician practice plans, that guidance is also applicable to other types of entities if circumstances are similar to those described.) If, instead, the cooperative activity is a nonprofit organization, a reporting organization is encouraged to consolidate the cooperative activity if it controls that cooperative activity by contract or affiliation agreement and the resulting financial statements would be meaningful, but consolidation isn t required. If the reporting organization is in control or has a controlling financial interest, it consolidates the cooperative activity unless one of the following circumstances exists: z The cooperative activity is in legal reorganization. z The cooperative activity is in bankruptcy. z The cooperative activity operates under foreign exchange restrictions, controls, or other governmentally imposed uncertainties that are so severe that they cast significant doubt on the reporting organization s ability to control the cooperative activity. z The rights of the noncontrolling interests are so restrictive that it s questionable whether control rests with the reporting organization. In addition to those circumstances, there s one more exception to the rule that control requires consolidation. If the cooperative activity is a nonprofit organization and the reporting organization is neither a sole corporate member nor the holder of a majority voting interest, the reporting organization isn t required to consolidate the cooperative activity unless it also has an economic interest in the cooperative activity. An economic interest exists if any of the following criteria are met: z The cooperative activity holds or utilizes significant resources that must be used for the unrestricted or restricted purposes of the reporting organization, either directly or indirectly by producing income or providing services. z The reporting organization is responsible for the liabilities of the cooperative activity. A requirement to consolidate precludes reporting an interest in a cooperative activity at fair value. (The exception discussed in paragraph 4.30 of the Audit Guide applies only to investments, not to related entities that provide goods or services that help the reporting organization accomplish its mission or serve the reporting organization s administrative purposes.) What Type of Legal Entity Is the Cooperative Activity? If the cooperative activity isn t required to be consolidated by the reporting organization, Exhibit 3-2 in the Audit Guide shows where to find guidance for the noncontrolling interest in the cooperative activity. In general, noncontrolling interests are reported using the equity method when the reporting organization has the ability to influence to a significant degree the operating and financial policies of the cooperative activity. When the reporting organization doesn t have significant influence, the cost method is generally used if the cooperative activity is a for-profit organization and disclosures only are used if the cooperative activity is a nonprofit organization. Alternatively, noncontrolling interests in many types of entities may be reported at fair value if the organization makes an election in accordance with the Fair Value Option subsections of FASB ASC That election is typically required to be made when the noncontrolling interest in the cooperative activity is initially recognized in the financial statements of the reporting organization. Illustration For example, five organizations (an emergency shelter, an organization that assists people with substance abuse problems, an employment counseling center, a mental health center, and an agency that assists incarcerated individuals) decide to work together to create and maintain a database of services provided to the homeless community. The five organizations create a nonprofit corporation with each organization appointing one member of the five-member board of directors. No single organization has a majority voting interest in the board of directors, so none of the five organizations controls the new nonprofit corporation. In accordance with FASB ASC , none of the organizations consolidates the new nonprofit corporation. All

3 five organizations are required to make the related party disclosures in FASB ASC through 50-6 as required by FASB ASC Conclusion The benefits of working with another entity to perform a cooperative activity usually are worth struggling through the necessary financial reporting challenges. This series of articles is a simplification of a complex area the reporting organization should read the underlying guidance in the FASB ASC and the Audit Guide and work with its auditors to determine the appropriate accounting and disclosures. Practical Consideration: PPC's Guide to Preparing Nonprofit Financial Statements devotes an entire chapter to affiliated organizations and other related entities. To order, visit tax.thomsonreuters.com/products/brands/ checkpoint/ppc. Financial Statement Preparation As discussed in the December 2014 issue of The PPC Nonprofit Update, SSARS 21, Statement on Standards for Accounting and Review Services: Clarification and Recodification, introduced a new financial statement preparation service. Both CPAs and their nonprofit organization clients may find the financial statement preparation service attractive, particularly if the nonprofit organization contracts with the CPA to prepare the organization s monthly financial statements. Under the old SSARS, CPAs were required to perform a compilation engagement if they submitted financial statements to their clients. SSARS 21 gives the new option of the client engaging the CPA to perform a financial statement preparation engagement instead. There are pros and cons to the new level of service and CPAs will want to determine whether (1) the CPA firm will choose to offer the service and (2) their clients will find that the service meets their needs. In order to help CPAs navigate this new type of engagement, Thomson Reuters has developed a new guide, PPC s Guide to SSARS Preparation Engagements. That Guide walks accountants through the rationale behind THE PPC NONPROFIT UPDATE, MARCH 2015, VOLUME 22, NO. 3 3 the new service and some factors to consider when deciding whether the new service is appropriate for a firm. Finally, it includes the practice aids needed to meet the documentation requirements of SSARS 21 for financial statement preparation engagements. For ordering information, call (800) or go to tax.thomsonreuters.com. Websites of Interest The following websites may be of interest to the nonprofit sector. Blue Avocado is a free online magazine sponsored by American Nonprofits (donations accepted). Launched in 2008, it has a current subscriber base of 64,000 and recently published its 100th issue. In celebration of this milestone, the editors are taking a sabbatical before returning in the spring of 2015 with a revamped website. But this doesn t mean that new readers won t have content to graze on. Past articles can still be accessed (see the Editors and Readers Picks and the Our Columns boxes on the right of the webpage) and, in a few weeks, the editors plan to post a list of the most-read and highest impact articles in various categories. Each edition aims to offer at least one thought-provoking or investigative article, at least one practical how to article, and at least one really fun article. Two unique features of the magazine are its First Person Nonprofit series (in which board chairs, founders and others tell their story) and the Ask Rita in HR column where reader-submitted questions are answered by HR attorneys. Registration required for commenting. Readers may subscribe to a free newsletter. The Nonprofit Centers Network (NCN) is a community of nonprofit and philanthropic leaders who share knowledge and networks to develop and operate high-quality, shared nonprofit workspace. NCN s consulting services can be tailored to fit a variety of budgets and will take on projects at any stage of the life cycle. The website offers webinars, trainings, and conferences, in addition to a Needs Assessment Toolkit to help identify potential partners or tenants in a shared workspace project. Memberships at various levels are available and are needed to access premium content.

4 4 THE PPC NONPROFIT UPDATE, MARCH 2015, VOLUME 22, NO. 3 Relying on Opinion of Counsel Disqualified persons (DPs) who receive economic benefits from an organization exempt under IRC Secs. 501(c)(3), (c)(4), or (c)(29) exceeding the value of the consideration given for such benefits are subject to a 25% excise tax on the excess benefit received [IRC Sec. 4958(a)(1)]. Under automatic excess benefit transaction (EBT) rules, any loan, compensation, or other similar payment by a Section 509(a)(3) supporting organization to a DP is an EBT; and the excess benefit is the amount of any grant, loan, compensation, or similar payment [IRC Sec. 4958(c)(3)(A)]. If a tax is assessed against a DP, any organization manager (manager) who participated in the EBT knowingly, willfully, and without reasonable cause is subject to a tax equal to 10% of the excess benefit [IRC Sec. 4958(a)(2)]. When a taxable event is due to reasonable cause (rather than willful neglect) and is properly corrected, the first tier tax will not be assessed or, if assessed, will be abated [IRC Sec. 4962(a)]. First tier tax includes taxes imposed on EBTs [IRC Sec. 4963(a)]. Definitions Disqualified Person. The definition of a DP for purposes of an EBT is complex. A DP is z Anyone who was, at any time during the five-year period ending on the date of the EBT, in a position to exercise substantial influence over the organization s affairs (without regard to whether there is actual exercise) [IRC Sec. 4958(f)(1)]. Certain individuals are automatically deemed to have substantial influence by the nature of their position. These include (1) voting members of the organization s governing body; (2) the president, chief executive officer, or chief operating officer and anyone who, regardless of title, has or shares ultimate responsibility for implementing the decisions of the governing body or for supervising the organization s management, administration, or operation; and (3) the treasurer or chief financial officer and anyone who, regardless of title, has or shares ultimate responsibility for managing the organization s finances. The term person includes entities as well as individuals. For example, a management company that has ultimate responsibility for managing the affairs of an organization is a DP because it is in a position to exercise substantial influence over the organization s affairs [Reg (g), Ex. 7]. z A member of the family of individuals described previously. The members of a person s family are his or her spouse (including a same sex spouse), siblings (whether by whole or half-blood) and their spouses, ancestors, and direct descendants through greatgrandchildren and spouses of such descendants [IRC Sec. 4958(f)(4)]. z An entity (corporation, partnership, limited liability corporation, trust, or estate) in which a DP and family members have more than a 35% ownership interest. Ownership of an entity includes constructive ownership (i.e., the indirect holdings of family members are considered) [IRC Sec. 4958(f)(3)]. z Anyone described previously with respect to a supporting organization, as defined in IRC Sec. 509(a)(3). z A donor (when the transaction involves a donor advised fund), or any person appointed by the donor, who has or reasonably expects to have advisory privileges over the distribution or investment of amounts in the fund because of the donor s status as a donor; a member of such person s family; and an entity in which these persons have more than a 35% ownership interest. z An investment advisor (when the transaction involves a public charity that maintains one or more donor advised funds), a member of his/her family, and a 35% controlled entity of any of these persons. An investment advisor is any person (other than an employee of the sponsoring charity) compensated by the sponsoring charity for managing the investment of, or providing investment advice about, assets maintained in the donor advised funds, including pools of assets, all or part of which are attributed to donor advised funds [IRC Sec. 4958(f)(8)(B)]. Manager. A manager is any officer, director, or trustee of the organization, or one who has powers or responsibilities similar to these [IRC Sec. 4958(f)(2)]. Individuals who can recommend particular administrative or policy decisions but cannot implement them without a superior s approval are not officers. In addition, independent contractors acting in a capacity as attorneys, accountants, or investment advisors are not deemed officers [Reg (d)(2)(i)]. Participation. A manager s participation in an EBT includes both active involvement and silence or inaction if the person is under a duty to speak or act. However, managers are not considered to have participated in a transaction if they opposed it in a manner consistent with fulfilling their responsibilities to the organization [Reg (d)(3)]. Reasonable Cause. Reasonable cause means that a manager has exercised ordinary business care and prudence [Reg (d)(6)].

5 THE PPC NONPROFIT UPDATE, MARCH 2015, VOLUME 22, NO. 3 5 Reliance on Advice of Counsel. Generally, reliance in good faith on the advice of counsel may establish reasonable cause that protects a DP or a manager. The advice must be in a written opinion by legal counsel (including in-house legal counsel) that concludes, based on a full disclosure of all the facts and the application of existing authorities to such facts, a transaction is not an EBT. This potential safe harbor also includes a favorable written opinion by an appropriate professional when elements of the transaction are within the professional s expertise. Appropriate professionals include (in addition to legal counsel) CPAs or accounting firms with expertise regarding the relevant tax law and independent valuation experts who meet specified requirements [Reg (d)(4)]. A Case in Point Technical Advice Memorandum (TAM) recently elaborated on when reliance on the advice of counsel may (or may not) establish reasonable cause. This TAM involved the following parties: C, a public charity by virtue of being a supporting organization under IRC Sec. 509(a)(3); P, a limited liability company taxed as a partnership; and X, a former director of C (having resigned within the five years prior to the mortgage purchase described later) who was also a more-than-35% owner of P. C owned a mortgage note that it sold at a public foreclosure sale. P purchased the note with funds borrowed from C. The loan from C to P was an automatic EBT under the special EBT rules applicable to supporting organizations described previously. C filed Form 4720 (Return of Certain Excise Taxes under Chapters 41 and 42 of the Internal Revenue Code) to report the excise tax on the EBT and to request tax abatement on the grounds that P reasonably relied upon the erroneous legal advice of counsel. Prior to C s loan to P, C s legal counsel orally advised C that neither P nor X were disqualified persons with respect to C because X was a former board member. Accordingly, counsel concluded that the loan, which was designed to benefit C, would not have adverse tax consequences. Subsequent to the transaction, counsel acknowledged that this advice was erroneous because he failed to consider the five-year look back rule in IRC Sec. 4958(f)(1)(A) for determining who is a disqualified person and the treatment of loans from a supporting organization under IRC Sec. 4958(c)(3). Under these rules, X was a disqualified person with respect to C because he had been a director of C within the five-year period ending on the date of the EBT. P was a disqualified person with respect to C because X owned more than a 35% controlling interest in P at the time of the EBT. Prerequisites of a Protective Opinion The technical advice memorandum provides some insight into protective opinions by examining case history and highlighting why this counsel s opinion could not be relied upon. Erroneous Advice. Reliance in good faith on the advice of counsel may establish reasonable cause and show there was no willful neglect where the taxpayer has obtained advice from a competent tax professional on a specific tax matter, provided the opinion is based upon all the relevant information [Haywood Lumber, 38 AFTR 1223 (2nd Cir. 1950)]. A taxpayer may reasonably rely on the advice of counsel even if the advice given is erroneous [Boyle, 55 AFTR 2d (1985)]. However, reliance on the advice of counsel alone does not establish reasonable cause the facts and circumstances must also support reliance [West Side Tennis Club, 24 AFTR 843 (2nd Cir. 1940)]. Reasonable Reliance. The IRS rejected the request to abate the EBT tax because P failed to demonstrate that its reliance on the advice of counsel was reasonable. Specifically, P did not z Provide information concerning counsel s expertise on EBT matters. z Prove that it provided all relevant and necessary information to counsel on which to base his advice. z Show that P actually sought the advice of counsel. (Counsel s letter did not specifically state who sought his advice, but it implies that it was C because counsel advised C that it would be permissible to make the loan to P.) However, neither counsel nor P provided any information concerning the circumstances under which the advice was conveyed to P. z Offer evidence indicating that it considered counsel s advice (assuming P in fact sought the advice) in deciding whether to bid on the loan at the public foreclosure auction. z Provide information about the circumstances under which it sought the advice of counsel (assuming it did so). The TAM suggests that seeking the advice of counsel shortly before the consummation of a transaction might preclude reasonable reliance, unless there is evidence of extenuating circumstances. For example, it may have been reasonable to seek advice on short notice if C s decision to sell the note was sudden or if P s interest in purchasing the note arose shortly before the auction. Lessons Learned. The reasoning underlying the IRS s refusal to abate the EBT tax in TAM provides

6 6 THE PPC NONPROFIT UPDATE, MARCH 2015, VOLUME 22, NO. 3 The PPC Nonprofit Update is published monthly by Thomson Reuters/Tax & Accounting, P.O. Box , Carrollton, Texas , (800) Thomson Reuters/Tax & Accounting. All Rights Reserved. Reproduction is prohibited without written permission of the publisher. Not assignable without consent. This publication is designed to provide accurate information regarding the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, investment, or other professional advice. If such assistance is required, the services of a competent professional should be sought. Reports on products or services are intended to be informative and educational; no advertising or promotional fees are accepted. Tax & Accounting Checkpoint P.O. Box Carrollton, Texas PRSRT STD U.S. POSTAGE PAID Thomson guidelines that should be observed in (1) securing an opinion of tax counsel on a proposed transaction and (2) using it as the basis for requesting abatement of an assessed tax. First, and most importantly, engage someone who has in-depth expertise on the tax issue involved. Counsel must be sufficiently knowledgeable to ask pertinent questions to uncover potentially determinative facts and details that the DP or manager may have neglected to mention. The request should be written. This will establish who asked for the opinion and the facts and circumstances presented to counsel. A written request will also show when the opinion was sought. Ideally, an opinion should be requested as early as practical before a proposed transaction is to be consummated. Finally, the DP or manager who requests the opinion should, to the extent possible, document that he or she relied on it in entering into (or approving) the transaction. Practical Consideration: TAM makes it clear that a favorable opinion of counsel does not by itself protect a DP or a manager from the EBT tax. The party seeking the opinion must demonstrate that reliance on it was reasonable in view of all the relevant facts and circumstances. Tax Briefs LETTER RULINGS: GOOD NEWS, BAD NEWS. Under new operating guidelines, exempt organizations can expect private letter rulings to be issued within six months. The bad news? The IRS charge for a private letter ruling is being increased from $10,000 to $28,300. (Rev. Proc , Sec , IRB 1.) FORM 1023-EZ REVISITED. In the December 2014 issue of The PPC Nonprofit Update Newsletter, we discussed Form 1023-EZ [Streamlined Application for Recognition of Exemption Under Section 501(c)(3) of the Internal Revenue Code] and suggested that such form may have been too simplified. It appears the IRS now shares our concern. IRS Chief Counsel William Wilkins recently stated publicly that Form 1023-EZ is under intensive review. Consequently, it should not be a surprise if there are changes in the requirements for using such form. FINAL RULES FOR SECTION 501(c)(29) EXEMPT STATUS. Qualified nonprofit health insurance issuers may be tax exempt under IRC Sec. 501(c)(29). Treasury recently released final regulations (TD 9709) that authorize the IRS to prescribe the procedures by which these entities can apply for recognition of exempt status. The IRS had previously issued Rev. Proc , IRB 368 that explained how an organization should apply for exemption (based on authorization in the temporary regulations). The IRS now intends to reissue Rev. Proc with a 2015 designation under the authority of the final regulations.