FIN 48 will force a closer look at the source of the organization’s funds and the organization’s tax exempt purpose. Analysis in this area is necessary because if the organization strays from its exempt purpose, the income generated could become taxable. FIN 48 implementation requires that the risk of this happening be analyzed and any potential taxes be disclosed. 

This goes along with the second target area, classification of unrelated business income and management’s devotion of time to raising funds unrelated to the exempt purpose. Income unrelated to the exempt purpose of the organization should be taxable and whether or not income is classified as “unrelated” is a tax position. The potential tax liability arising from classifying income as unrelated business income requires a FIN 48 disclosure. 

The last generally applicable target area for exempt organizations is excessive compensation arrangements. If a compensation arrangement is found to be excessive it can result in excise taxes or jeopardize the tax exempt status of the organization. Compensation policies and practices will require analysis and possibly a FIN 48 disclosure of potential tax liability. 

Posted by Jamye Shaffer
RCO – Tax Senior

Ok that is a bunch of tax talk. How can this standard affect tax-exempt organizations? The Financial Accounting Standards Board actually addressed that issue specifically, in a staff position paper issued last year. There are several FIN48 issues that can affect tax exempt agencies, but the most common are (1) performing services that are not consistent with the organization’s tax exempt purpose and (2) unrelated business income.

The first assessment of any tax position is whether or not the position is more likely than not to be upheld during an IRS examination. If the position would be upheld, then it is NOT an uncertain tax position and there is NO liability.  If the position cannot be upheld, then FIN48 requires a liability to be recorded and disclosed. The calculation of the liability is prescribed but allows some judgement. The recorded liability is the difference between the benefit recorded (full amount) and the amount that would be 50% or more likely to be allowed after the examination. The disclosure will identify this as an uncertain tax position, and will raise red flags for an IRS audit. As reported in the Journal of Accountancy, the IRS is currently proposing companies with more than $10 million of assets to disclose uncertain tax positions on their annual returns. 

Need help in determining what is considered an “uncertain tax position”? See our next post.

Information You Will Need to Prepare Schedule D
You will need to gather or prepare the following information:

• Details regarding your donor advised funds, (Part I).
• Details regarding your conservation easements, (Part II).
• Details regarding your collections of art, historical treasures, and similar assets, (Part III).
• Details regarding your trust, escrow, and custodial arrangements, (Part IV).
• Details regarding your endowment funds, (Part V).
• Details regarding your assets, investments, and liabilities, (Part VI, VII, VIII, IX, and X).
• Your audited financial statements, (Part XI, XII, and XIII).
• View the IRS Website for additional instructions for preparation of Schedule D.

How to Prepare Schedule D

Part I, Organizations Maintaining Donor Advised Funds or Other Similar Funds or Accounts

A donor advised funds allow donors to maintain advisory privileges regarding the distribution or investment of their donated funds. Generally a donor advised fund is a fund or account:

1. That is separately identified by reference to contributions of the donor;
2. That is owned and controlled by your organization; and
3. For which the donor or donor advisor has or reasonably expects to have advisory privileges in the distribution or investment of amounts held in the donor advised funds of accounts because of the donor’s status as a donor.

A donor advised fund does not include any fund or accounts:

1. That only makes distributions to a single organization or governmental unit;
2. In which the donor only provides advice regarding the distribution of grants to individuals on an objective basis for travel, study, or other similar purposes as the member of a committee which is not controlled by the donor.

Line 1 – 6: complete the information for your donor advised funds in column (a) and for you funds that are similar to donor advised funds in column (b).

Part II, Conservation Easements
Line 1: Conservation easements restrict the use of or modifications to real property. They must be granted to a qualified organization in perpetuity exclusively for conservation, such as protection of a habitat, preservation of open space, or the preservation of property for educational, historical, or recreational purposes. To qualify as a certified historic structure, the building must be listed in National Register of Historic Places or be certified as being of historic significance to a registered historic district.

Line 2a – 2d: These numbers should be exact, not estimates, using decimals where necessary, such as for acreage.

Line 3: Because conservations easements are supposed to be granted in perpetuity, the IRS wants to know about any changes. An easement is modified if the terms of the easement are modified, such as increasing or decreasing the amount of land included in the easement. An easement is terminated if it is condemned, extinguished by court order, transferred, or rendered void or unenforceable. If the easement was modified, transferred, or terminated during the year, provide an explanation in Part XIV.

Line 5: Briefly summarize in Part XIV any written policies regarding monitoring, inspection, and enforcement. Monitoring occurs when you investigate the condition or use of the restricted property to verify that the owner is adhering to the terms of the easement. Inspection refers to an onsite visit to the property, while enforcement is an action taken by your organization when a violation of the easement stipulations occurs. This may include communicating with the property owner regarding their obligations under the easement, arbitration, or litigation.

Line 8: In order to comply with IRC Sections 170(h)(4)(B)(i) and 170(h)(4)(B)(ii), the easements must meet the following requirements:

1. Restrictions that preserve the entire exterior of a building, (including the space above it) and prohibit any changes to the exterior that are inconsistent with the historical character.
2. Donor and donee agree in writing under penalties of perjury that the donee’s exempt purpose is environmental protection, land conservation, open space preservation, or historic preservation and the donee has the resources and commitment to enforce the restrictions.
3. There is a qualified appraisal, photographs of the entire building exterior, and a description of all development restrictions relating to it, (such as zoning laws, restrictive covenants, etc.)

Part V, Endowment Funds
Section V is a snap shot of the components of your net assets. Quasi-endowments, (board designated) are established by the board to function as endowments. They must retain their purpose and intent as specified by the donor or source of the original funds. Permanent endowments provide a permanent source of income. The principal must be invested and kept intact in perpetuity. The income can be used by your organization. Term endowments provide a source of income for a specific period of time or until a specific event occurs.

Line 1a: Enter the total sum of your quasi, permanent, and term endowments.

Line 1b: Enter the current year contributions to the endowments. Include gifts, grants, and contributions. Also include additional funds established by your board to function like an endowment, but that may be expended at any time at the discretion of the board.

Line 1c: Enter realized and unrealized gains and losses. If earnings are reported net of transaction costs, enter the net on this line. If earnings are reported gross, enter the transaction costs on line 1f.

Line 1e: Enter distributions for facilities and programs, including amounts withdrawn from quasi-endowments. Do not include scholarships on this line. Instead enter them on line 1d.

For more information, view the IRS instructions at http://www.irs.gov/pub/irs-pdf/i990sd.pdf.

Coming Soon
Schedule G coming March, 2010.

To begin the audit, the accountant (or equivalent) will present the auditor with a listing of all accounts and the related balances that are used to compile the financial statements. Basically, the accountant is saying this is what I believe to be the balances of these accounts. Then the auditor goes through various steps, such as confirming information with third parties, reviewing invoices, contracts, receipts, bank statements, and analytical procedures to prove that the balances are not “materially misstated” and that the statements conform to generally accepted accounting principles.

An audit does not look at every transaction that occurred during the year. Normally this would be cost prohibitive. So the auditor will look at various accounts and take a sample of transactions from those accounts. Because we “test” the account balances and not review 100%, our report is not saying that the financial statements are necessarily 100% accurate, but our report tells the users of the financial statements that we believe there is not a material misstatement that would cause you to alter a decision.

For example, your organization may report to us that they have a balance of accounts receivable of $2 million. Through various means of testing this balance, we have reviewed $1.9 million of this balance and believe it to be accurate. But we have not audited the remaining $100,000. We believe that the users of the financial statements would make the same decision if the actual balance were $2 million or $1.9 million. When errors are found during the audit, the auditors will discuss the issues with management and propose adjustments to the financial statements.

Understanding what an audit of financial statements entails helps management, Board of Directors and others to know what they are paying for and that the statements fairly represent the financial status of the organization. If the accountant uses the same generally accepted accounting principles to compile the monthly financial statements, this will help management and the Board of Directors make consistent, well-informed decisions.

Participants will learn:

• The importance of sound budgeting
• The basic principles of budgeting
• How the budget is used as a planning and management tool
• Steps in the budgeting process
• How to develop various types of budgets, including programs and special events

Speaker: Christi Stinson, Executive Director, Funding Information Center
Fee: $20 for FIC members; $40 for nonmembers

Date: Tuesday February 16th, 2010

Time:  9:00 a.m. to 11:00 a.m.

Location: Funding Information Center
329 S. Henderson, Fort Worth, TX 76104
817-334-0228
To register, follow this link.

Federal law requires the taxpayer keep a record of any deductible contributions made. For donations by text message, a copy of the telephone or wireless account bill must show the name of the donee organization, the date of the contribution, and the dollar amount. For other cash contributions, be sure to keep a bank record, such as a cancelled check, or a receipt from the charity showing the name of the charity and the date and amount of the contribution.

For additional information regarding Haiti donations, see this IRS release.

What are the specific requireqments for a charitable contribution? See this IRS publication for additional information.

Special Issues
Financial information in Parts II and III are now reported on the same basis as the remainder of the return, (in the past, Schedule A was presented on a cash basis even if the rest of the return was on an accrual basis.) This means that all four prior years that are shown (2004 through 2007) must be revised to the accrual basis if your organization reports on an accrual basis. Additionally, you must convert the list of supporters that is reported on line 5 to accrual basis for all prior years (2004 through 2007).

Information You Will Need to Prepare Schedule A, Part II or III
You will need to gather the following information:

• Contribution lists for 2004 – 2008. After 2008, you will only need your current year list since prior years will already have been converted to the accrual basis.
• Tax returns for 2004 – 2008. After 2008, you will only need your current year return since prior years will already have been converted to the accrual basis.
• View the IRS Form 990 Filing Tips: Schedule A (Public Support and Public Charity Classification) for additional help.

How to Prepare Schedule A, Part II
Complete Part II if you selected line 7 in Schedule A, Part I. There are two ways to meet the public support requirements: at least 33 and 1/3% of your support is from contributions and grants or 10% of your support is from contributions and grants and you meet the facts and circumstances test listed in Regulations section 1.170A-9T(f)(3). If you met the support test in the prior year but don’t meet it this year, you will have a grace period for one year, (see lines 16b and 17b in Schedule A). This article will only address the lines that often cause confusion.

Line 1
Enter your contributions, grants, and membership fees to the extent the fees are in excess of payments to purchase related activity products or services. You will find these numbers on Form 990 page 9 line 1. For 2004 – 2007, this number would come from Page 1 line 1. Remove unusual grants from this amount. Unusual grants are grants that are contributions and bequests from disinterested persons that meet the following criteria:

• Attracted because of the organization’s publicly supported nature,
• Unusual and unexpected because of the amount, and
• Large enough to endanger the organization’s status as normally meeting the 33% percent public support test or the 10% facts and circumstances test.

Line 5
Enter the portion of contributions by each individual , trust, or corporation included on line 1 that exceeds 2% of the total reported in line 1(f). This is for the current year plus the four previous years. For example, If your total in line 1(f) is $1,000,000, and you have one individual who contributed $21,000 during years 2004 – 2008, a private foundation who contributed $100,000 during years 2004 – 2008, a corporation that contributed $50,000 during the years 2004 -2008, and 50 individuals who each contributed a total of less than $20,000 during 2004 – 2008, you would report $171,000, (21000 + 50,000 + 100,000) on line 5. The $171,000 would be considered as coming from excess contributors and will be removed from your public support percentage calculations. Do not include support from governmental units or publicly supported organizations in line 5. Remember to convert 2004 – 2007 to accrual basis if your organization is on an accrual basis.

Line 12
Enter the total amount of gross receipts for the current year plus the previous four years from admissions, sales of merchandise, performance of services, or furnishing of facilities in any activity which is not an unrelated trade or business. Include membership fees to the extent that they are payments to purchase any of the related activities.

Line 17a
If lines 14 and 15 are less than 33 1/3% you will need to determine if you qualify under the facts and circumstances test. If 10% of your support is from contributions and grants and you meet the facts and circumstances shown below, select the box on line 17a and provide details of how you meet the following facts and circumstances requirements of Regulations section 1.170A-9T(f)(3) in Schedule A, Part IV):

• The program maintains a continuous and bona fide program for solicitation of funds from the general public, community, membership group involved, governmental units or other public charities.
• All other facts and circumstances, including the sources of support, whether the organization has a governing board which represents the broad interests of the public, and whether the organization generally provides facilities or services directly for the benefit of the general public on a continuing basis.
• If the organization is a membership organization, whether the solicitation for dues-paying members is designed to enroll a substantial number of persons from the community, whether dues for individual members have been fixed at rates designed to make membership available to a broad cross-section of the public and whether the activities of the organization will be likely to appeal to persons having some broad common interest or purpose.

Schedule A Part III
Complete Part III if you selected line 9 in Schedule A, Part I. The public support for test Part III is met if the organization meets the following criteria:

• The organization receives at least one-third of its support from contributions, membership fees, and gross receipts from activities related to its exempt functions or from amounts which are not related trades or business, not including unusual grants, (see above for a definition),
• No more than one-third of its support comes from gross investment income and net unrelated business income from businesses acquired after June 30, 1975.

If this criteria is not met, the organization will fail the public support test and will be considered a private foundation instead. Contributions from disqualified persons, contributions that exceed 1% of the total contributions for the year, and contributions that exceed $5,000 are removed from the public support calculation.

For more information, view the IRS instructions at http://www.irs.gov/pub/irs-pdf/i990sa.pdf.

Coming Soon
Schedule D coming February, 2010

Mark your calendars and file the return, with extensions, if necessary.

Have questions? Give me a call.

Special Issues With Schedule A, Part I
While your IRS determination letter is the first place to look to determine that type of organization you are, your activities may have changed. For your first five tax years as a section 501(c)(3) organization, you must check the box in Part I that corresponds to your public charity status as stated in your exemption determination letter from the IRS. After the first five years, check the box that corresponds to the activity you currently have.

Information You Will Need to Prepare Schedule A, Part I
You will need to gather or prepare the following information:

• IRS exemption determination letter. If you do not have your exemption determination letter, call 1-877-829-5500 to speak to the Exempt Organizations Customer Account Services.
• Information regarding the sources of your income.
• View the IRS Form 990 Filing Tips: Schedule A (Public Support and Public Charity Classification) for additional help.

How to Prepare Schedule A, Part I
Complete Part I by specifying under which part of the Internal Revenue Code (IRC) your organization claims classification as tax-exempt. Look at your determination letter to determine under what section the IRS has determined you fall, then verify that you still meet the qualifications of the section, as detailed on the schedule and shown below. The remainder of this article will only address lines 7, 9, and 11 as they can be a little confusing.

Line 7 — 509(a)(1)
An organization that checks the box on line 7 qualifies as tax-exempt under IRC 509(a)(1) and 170(b)(1)(A)(vi) indicating that it is a “publicly-supported public charity”. This means that a substantial part of your revenue comes from contributions from the general public or from a governmental unit. A publicly-supported charity must attract public support in the form of donations and grants from people and granting agencies who agree with its goals and that it is successfully achieving them. If you are described in IRC 509(a)(1) and 170(b)(1)(A)(vi), you will complete Part II of Schedule A.

Line 9 — 509(a)(2)
An organization that checks the box on line 9 qualifies as tax-exempt under IRC 509(a)(2) and is typically supported by revenue from its exempt-purpose activities and services rather than from contributions. A 509(a)(2) organization, which depends more on revenue from services provided to those who find the services valuable and cost-effective, must in addition avoid competing with commercial businesses or risk being reclassified as a commercial business itself. In general, 509(a)(2) organizations are at greater risk of losing their tax-exempt status as a result of being reclassified as a commercial (and not charitable) organization. To prevent this, restrict your activities to ones that primarily advance your stated missions. If you are described in IRC 509(a)(2), you will complete Part III of Schedule A.

Line 11 — 509(a)(3), Supporting Organizations
Supporting organizations will select what type of supporting organization they are in line 11. Again, look at your IRS determination letter as a first place to start. If this does not tell you your type, answer the following:

• Type I:  the organization is operated, supervised or controlled by one or more publicly supported organization. Choose this if you can answer “Yes” to this question: 
  “Does the governing body, officers ,or membership of the supported public charity(ies) select a majority of your organization’s officers, directors, or trustees?”
• Type II: the organization is supervised or controlled in connection with one or more publicly supported organizations. Choose this if you can answer “Yes” to this question: 
  “Do the same persons, such as directors, trustees, and officers supervise or control the supported organization and my organization?”
• Type III: choose this is you answered “No” to the questions for Type I and Type II, your activities perform the functions of, or carry out the purposes of, the publicly supported organization(s), and but for your organization’s involvement, such activities would normally be engaged in by the publicly supported organizations themselves.  If this is the case, choose Type III Functionally Integrated. If not, you must (1) make payments of substantially all of your income (at least 85% of adjusted net income) to or for the use of one or more supported organizations, (2) provide enough support to one or more supported organizations to ensure that the supported organization is attentive to your operations; and (3) pay a substantial amount of the total support of the supporting organization to those supported organizations that meet requirements (1) and (2). If this describes you, choose Type III, Other.

NOTE: The IRS has published a notice of proposed regulations for Type III Supporting Organizations That Are Not Functionally Integrated as a result of changes made in the Pension Protection Act of 2006, Public Law 109-280 (PPA). As a result of the PPA, Type III Supporting Organizations are prohibited from supporting any supported organization not organized in the United States. It also prohibits Type I or Type III supporting organizations form accepting a gift or contribution from a person who directly or indirectly controls the governing body of a supported organization.

For more information, view the IRS instructions at http://www.irs.gov/pub/irs-pdf/i990sa.pdf.

Coming Soon
Schedule A, Parts II and III, coming in January, 2010.

10. Begin working on your schedules weeks before the audit occurs, you might have questions and your auditor is just a phone call or email away.
9. Keep track of issues you struggled with during the year. It will help the auditor key in on important areas at the beginning of the audit.
8. Get the confirmations back to the auditors quickly! The more time there is to send these out the better chance the auditor receives the accurate information. Not getting them back causes more work for all parties involved.
7. Communicate your schedule to the auditors. This helps the auditor work around your normal responsibilities.
6. Make all your adjustments to your trial balance before you provide it to the auditor.
5. Those schedules we talked about earlier make sure they tie to that final trial balance.
4. Make needed documentation easy to access and provide it to the auditors as soon as possible.
3. Be available! Here’s a tip, set aside time on your calendar devoted to auditor questions and audit prepwork.
2. Implement good segregation of duties among your staff. The more checks & balances you have the less likely you are to have errors or issues.
1. Don’t do anything fraudulent or misleading during the year. (Always a plus). Tell the truth.

The key to success is communication and preparedness. If you apply these steps you should see a reduction in the amount of friction an audit can cause.