President Obama recently signed into law H.R. 4462 which allows taxpayers to claim a charitable deduction in the 2009 tax year for donations made after January 11, 2010 and before March 1, 2010 for the relief of victims in areas affected by the recent earthquake in Haiti. This new law applies only to contributions of cash (not property) and the contribution must otherwise meet the requirements for a charitable contribution. Cash contributions would include contributions made by text message, check, credit card, or debit card. 

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.

Purpose of Schedule A, Parts II & III
The purpose of Part II is to determine whether your organization meets the public support test.

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.

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Recently one of our clients asked the following question: “What should we (organization) do regarding employer-provided cell phones? Should we be taxing the employees through payroll (imputed income)? We have approximately 10 employees that we provide cell phones for. We believe they all use the phones for both business and personal use, but only I can say for myself how much is personal vs. how much is business. I understand that last year the IRS was going to make a major change in their requirements for personal cell phone use taxation on business provided cell phones, but I don’t know if they ever did. What should we be doing?”

This is a very common question for all organizations, not just tax-exempt entities.

Here was my response for this very timely question: Read the rest of this entry »

According to FIC’s December 9th electronic newsletter there are Ten Things Non-Profit Boards Should Think About (Soon). According to Steve Tatum, an attorney and partner with Cantey Hanger L.L.P., most members of non-profit boards are unaware of the potential for personal liability that became apparent in the recent case of Verret v. U.S.A., 542 F. Supp. 2d 526 (E.D. Tex. 2008) affirmed by the U.S. Court of Appeals for the Fifth Circuit on February 26, 2009. The lower court opinion gave a very detailed account of the reasons why the board chairman of a non-profit hospital was held personally liable for payroll taxes the hospital owed but did not pay. See our previous post regarding this court case. It also provides some good ideas for at least minimizing the risks of board members being personally responsible for a potentially large bill from the IRS.

See full article here.

Need help with governance and regulatory compliance? Contact us.

Purpose of Schedule A
The primary purpose of Schedule A is to assist the IRS in determining if an organization qualifies as tax-exempt.  Public accountability is also promoted by providing certain details of the organization’s finances and operations for public inspection. Only 501(c)(3) organizations and 4947(a)(1) nonexempt charitable trusts complete Schedule A.

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.

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The IRS recognized the need for transition relief related to information included in Form 5500 by some 403(b) plans. It was noted that some of the filings would be rejected under ERISA because the filing would be incomplete due to the administrator’s inability to identify all participant contracts and accounts that should be included in plan assets. The filing would also be rejected if the audited financial statements contained an adverse, qualified or disclaimed opinion (other than disclaimers related to limited scope audit provisions in 29 C.F.R. 2520.103-8 or 103-12).

Administrators of 403(b) plans do not need to treat annuity contracts and custodial accounts as part of the employer’s plan assets for purposes of ERISA’s annual reporting requirements (further, the employer is not required to count the individual as a participant under the plan for Form 5500 reporting purposes) provided that:

1. The contract/account was issued to a current or former employee before 1/1/09
2. The employer ceased to have any obligation to make contributions and has ceased making contributions to the contract/account before 1/1/09
3. All of the rights and benefits under the contract/account are legally enforceable against the insurer or custodian by the individual owner without any involvement by the employer
4. The individual owner of the contract account is fully vested

The Department will not reject a Form 5500 on the basis of qualified, adverse or disclaimed opinion if the accountant expressly states that the sole reason for such an opinion was because such pre-2009 contracts/accounts were not covered by the audit or included in the plan’s financial statements.

The above information obtained from Field Assistance Bulletin 2009-02.

When completing the new Form 990, organizations are required to provide details about related organizations on Schedule R. An organization is a related organization to the filing organization if it stands in one or more of the following relationships to the filing organization:

1. Parent – an organization that controls the filing organization.
2. Subsidiary – an organization controlled by the filing organization.
3. Brother/Sister – an organization controlled by the same person or persons that control the filing organization.
4. Supporting/ Supported – an organization that is (or claims to be) at any time during the organization’s tax year, a supporting or supported organization within the meaning of section 509(a)(3) and 509(f)(3).

According to the IRS – the definition of control is:

1. Power to remove and replace a majority of a nonprofit organization’s directors or trustees,
   or
2. Management or board overlap where a majority of the controlled entity’s directors or trustees are trustees, directors, officers, employees, or agents of the controlling organization.

In the case of stock corporations, and other organizations with owners or persons having beneficial interests, whether such organization is taxable or tax-exempt, any of the following relationships represent control:

1. Ownership of more than 50% of the stock (by voting power or value) of a corporation.
2. Ownership of more than 50% of the profits or capital interest in a partnership.
3. Ownership of more than 50% of the profits or capital in a limited liability company (LLC ) treated as a partnership regardless of the designation under state law of the ownership interests as stock, membership shares or otherwise.
4. Being a managing partner or managing member in a partnership or LLC treated as a partnership which has three or fewer managing partners or managing members (regardless of which partner or member has the most actual control).
5. Being the sole member of a disregarded entity, (an entity wholly owned by the organization that is not a separate entity for Federal tax purposes).
6. Ownership of more than 50% of the beneficial interests in a trust.

What is considered indirect control? If the filing organization controls Entity A, which in turn controls Entity B, the filing organization will be treated as controlling Entity B also.

Sometimes it is difficult to determine “who” owns “what”. If you have questions, call us.

Has your nonprofit organization ever considered lobbying activities? An organization exempt from taxation under section 501(c)(3) will lose its tax-exempt status and its qualification to receive deductible charitable contributions if a substantial part of its activities are carried on to influence legislation.

However, there are circumstances where lobbying is allowed for certain eligible 501(c)(3)s. Read the rest of this entry »

Final regulations that were adopted in 2007 take effect on January 1, 2009, for most tax-exempt organizations. 

What changed? How is your T-E organization affected?

The final regulations require all 403(b) providers, including churches, to have a plan document in place no later than 12/31/08. Failure to adopt a written plan before 1/1/09 will render all subsequent contributions to the plan to be fully taxable. The plan document must address several issues, including: Read the rest of this entry »

Thanks in part to some hard work and outreach by the association community, Senator Grassley pulled his two amendments to the Finance Committee health care bill late Thursday night, meaning that no language regarding nonprofit governance or executive compensation will be contained in the Finance Committee bill. The numerous comments and letters shared by association executives from across the country helped educate members of the Finance Committee and the Senate about these issues, and we thank you for your support.

However, ASAE knows that this will not be the last time the nonprofit community will see this legislative language. Speaking to the Bureau of National Affairs, a Grassley aide said that although the Senator did not offer the amendments at this time, he is leaving open the option to offer them to another bill that has tax implications. It is important that the nonprofit community remain vigilant and ready to debate the issues of nonprofit governance and compensation whenever the debate is held.

For more information on these issues or to inquire how you can remain involved, contact ASAE’s Public Policy Department at (202) 626-2703 or publicpolicy@asaenet.org.

The above reprinted with permission.