Embed Size (px)
Citation preview
Presenting a live 110‐minute teleconference with interactive Q&A
Non‐Profits and Unrelated Business Income: Evaluating Non‐Core Revenue Streams Evaluating Non‐Core Revenue Streams Preparing for Tough Scrutiny of UBI by the IRS
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
WEDNESDAY, JULY 11, 2012
Today’s faculty features:
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
Patricia Jo Mayer, Senior Tax Manager, Moss Adams, San Diegoy , g , , g
Greg McRay, CEO, Foundation Group Inc., Nashville, Tenn.
For this program, attendees must listen to the audio over the telephone.
Please refer to the instructions emailed to the registrant for the dial-in information.Attendees can still view the presentation slides online. If you have any questions, pleasecontact Customer Service at1-800-926-7926 ext. 10.
Conference Materials
If you have not printed the conference materials for this program, please complete the following steps:
• Click on the + sign next to “Conference Materials” in the middle of the left-hand column on your screen hand column on your screen.
• Click on the tab labeled “Handouts” that appears, and there you will see a PDF of the slides for today's program.
• Double click on the PDF and a separate page will open. Double click on the PDF and a separate page will open.
• Print the slides by clicking on the printer icon.
Continuing Education Credits FOR LIVE EVENT ONLY
Attendees must listen to the audio over the telephone. Attendees can still view the presentation slides online but there is no online audio for this program.
Attendees must stay on the line for at least 100 minutes in order to qualify for a full 2 credits of CPE. Attendance is monitored as required by NASBA.
Please refer to the instructions emailed to the registrant for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.at 1 800 926 7926 ext. 10.
Tips for Optimal Quality
S d Q litSound Quality
For this program, you must listen via the telephone by dialing 1-866-873-1442and entering your PIN when prompted. There will be no sound over the web connection.co ect o .
If you dialed in and have any difficulties during the call, press *0 for assistance. You may also send us a chat or e-mail [email protected] immediately so we can address the problem.
Viewing QualityTo maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key againpress the F11 key again.
Non‐Profits and Unrelated Business I E l ti N C R Income: Evaluating Non‐Core Revenue Streams Seminar
July 11, 2012
Greg McRay, Foundation Group [email protected]
Patricia Jo Mayer, Moss [email protected]
Today’s Program
Latest Developments At The Federal Level[Patricia Jo Mayer]
Slide 7 – Slide 17
Developments With IRS Guidance On UBI[Greg McRay]
Form 990-T Issues
Slide 18 – Slide 49
Slide 50 – Slide 63[Patricia Jo Mayer]
Approaches For An NPO To Adjust To Federal Policy Shifts[Greg McRay]
Slide 64 – Slide 75[Greg McRay]
LATEST DEVELOPMENTS AT Patricia Jo Mayer, Moss Adams
LATEST DEVELOPMENTS AT THE FEDERAL LEVEL
Latest Developments AtThe Federal Level
‐ Housesubcommitteehearings
IRS compliance projects on colleges and universities‐ IRScomplianceprojectsoncollegesanduniversities
8
House Subcommittee Hearings
• Oct.6,2011:CongressmanCharlesW.BoustanyJr.,MD,chairmanoftheSubcommitteeonOversightoftheCommitteeonWaysandMeans,sentalettertotheIRSseekinginformationrelatingtoIRSd i i t ti d i ht f t tadministrationandoversightoftax‐exemptorgs.
‐ Corporategovernanceandcompliance‐ NewreportingrequirementsTEhospitals‐ Updateoncollegesanduniversitiescomplianceproject
• ChairmanBoustanyannouncedhearingonMay16,2012examiningoperationsandIRSoversightofTEorgs.Thisistobethefirstinaseries of hearing by the subcommittee on the TE sector and IRS
9
seriesofhearingbythesubcommitteeontheTEsectorandIRSoversightofTEactivities.
House Subcommittee Hearings (Cont.)
• Whenannouncingthehearing,ChairmanBoustanysaid:
– “Thisreviewallowsustoexaminethestateofthetax‐exemptsector,asitcurrentlyexiststoday,andconsiderthisinformationaswecontinuetheCommittee’seffortstowardcomprehensivetaxpreform.Inbothcases,thegoalisthesame‐ toensurethatthetax‐exemptsectorisoperatinginanefficientmannerandthatthelawsgoverningtax‐exemptorganizationsarebeingappliedfairlyandevenly.”
• Taxreformwasrarelymentionedduringtheactualhearing.
10
y g g
House Subcommittee Hearings (Cont.)
• Witnessesatthehearing:– RogerColinvaux(associateprofessor,ColumbusSchoolofLaw,theCatholicUniversityofAmerica)
– DianaAviv(presidentandCEO,independentsector)– JoanneDeStefano(VPforfinanceandCFO,CornellUniversity,testifyingonbehalfofNACUBO)y g )
– MichaelReiger(seniorVPoflegalandcorporateaffairs,VHAInc.)– BruceR.Hopkins(seniorpartner,PolsinelliShughart)
• Eachwitnessspokebrieflyandthenwasaskedthreetofourquestionsbythesubcommittee.
11
College And University Study
• InterimreportreleasedMay7,2010
• 400compliancequestionnairessent;344responsesreceivedp q p
• 30examsopened
• Areasofinterest:– UBIactivities– Investment,managementanduseofendowmentfunds– Executivecompensation– Governance
12
College And University Study: UBI
Q i S ll M di LQuestion Small Medium Large
NeverfiledForm990‐T 48% 29% 4%
E i d i i i i 23% 54% 82%
Question Small Medium Large
NeverfiledForm990‐T 48% 29% 4%
Engageinadvertisingactivity 23% 54% 82%
%reporting advertisingasUBI 6% 21% 53%
Engage in facility rental activity 57% 83% 95%
Engageinadvertisingactivity 23% 54% 82%
%reporting advertisingasUBI 6% 21% 53%
Engage in facility rental activity 57% 83% 95%Engageinfacility rentalactivity 57% 83% 95%%reportingfacility rental asUBI 11% 22% 41%
Relyonadvice ofoutsidecounselori d d f UBI i
36% 32% 39%
Engageinfacility rentalactivity 57% 83% 95%%reportingfacility rental asUBI 11% 22% 41%
Relyonadvice ofoutsidecounselor 36% 32% 39%independentaccountforUBIissuesindependentaccountantforUBIissues
13
College And University Study: Investments And Compensation
Q ti S ll M di LQuestion Small Medium LargeHaveanendowment fund 87% 97% 100%
Engageinforeigninvestments 53% 67% 82%Conducteducationalprogramoutside U.S. 30% 54% 83%
Userebuttablepresumptionprocess 55% 71% 63%Highestpaidnon‐ODTKEFacultySportscoach
55% 49%16%
34%43%
14
Compensation To Highest-Paid (In Thousands)
15
College And University Study: Governance
Question Small Medium Large
Writtenconflict of interest for board and top 81% >85% 100%Writtenconflictofinterestforboardandtopmanagementofficial(private/public)
81%>85%
85%>95%
100%95%
Written( / bl )
conflictofinterestforfull‐timefaculty 58%84%
83%79%
100%80%(private/public) 84% 79% 80%
Followaformalwritten compensationpolicy 34% 61% 63%
Board approval of loans/extensions of credit to 44% 64% 75%Boardapprovalofloans/extensionsofcredittoODTKE
44% 64% 75%
16
Colleges And Universities: Compliance
• TheIRSworkplan– ProjectsEOwillbeworkingoninFY2012
• Collegesanduniversities
IRS: EO is completing a wide ranging review– IRS:EOiscompletingawide‐rangingreview.
– Workingtofurtheranalyzequestionnairedataandtocompletei i f l d ll d i i iexaminationsofselectedcollegesanduniversities
– AfinalreportwillhighlightEO’sfindingsdrawnfromquestionnaire
17
dataandexamresults.
DEVELOPMENTS WITH IRS Greg McRay, Foundation Group Inc.
DEVELOPMENTS WITH IRS GUIDANCE ON UBI
www.501c3.org
IRS Publication 598 (Tax on Unrelated Business Income of Exempt Organizations), revised March 2012g ),
First revision since 2010
19
www.501c3.org
Federal tax deposits must be made by electronic funds transfer, or EFTPS.
Forms 8109 and 8109-B (federal tax deposit coupons) can no longer be used.be used.
20
www.501c3.org
For large corporations, special rules apply for estimated tax payments that are required to be made for the period including p y q p gJuly, August or September 2012, and the months immediately following these months.
Corporations with more than $1 billion of assets must pay a higher installment percentage than is required for smaller organizations.
21
www.501c3.org
The maximum cost of a low-cost article, for organizations eligible to receive charitable contributions, was increased from $9.50 to , $$9.70.
Involves the distribution of low-cost articles incidental to soliciting Involves the distribution of low cost articles incidental to soliciting charitable contributions
Started at $5 and has been indexed annually to inflation Started at $5 and has been indexed annually to inflation
22
www.501c3.org
The annual limit on associate member dues received by an agricultural or horticultural organization and that are not treated g gas gross income increased from $145 to $148,
Involves 501(c)(5) organization non-voting member dues, primarily Involves 501(c)(5) organization non voting member dues, primarily
UBI involved with other 501(c)(5) or (c)(6) groups
23
www.501c3.org
IRS Publication 598 available at: http://www.irs.gov/pub598
24
www.501c3.org
Every year, IRS issues “work plans” for various jurisdictional areas.
This obviously includes the Exempt Organizations wing of the Tax Exempt and Government Entities Division.
Under signature of Lois G. Lerner, Director of EO
25
www.501c3.org
2012 Work Plan will analyze situations in which the organization filed a Form 990 returns on which it reporting UBI, but filed no p g ,Form 990-T.
IRS is not focusing on situations with less than $1,000 gross UBI IRS is not focusing on situations with less than $1,000 gross UBI (the limit before which Form 990-T is required).
26
www.501c3.org
IRS will be analyzing Form 990-T data to develop “risk models” that will help identify organizations that consistently report p y g y psignificant gross receipts from unrelated business income, but declare no tax due.
EO will use this work in conjunction with a coming “UBIT compliance project.”
27
www.501c3.org
Organizations having more than $1,000 of UBI on Form 990, but no Form 990-T, will receive an inquiry and could be subject to audit., q y j
28
www.501c3.org
McGladrey LLP has called attention to Form 990, lines 7a & 7b as being on the IRS radar for particular scrutiny.g p y
7a: Total unrelated business income
7b: Net unrelated business income
29
www.501c3.org
Private letter rulings are written decisions by the IRS in response to taxpayer requests for guidance. A private letter ruling binds p y q g p gonly the IRS and the requesting taxpayer. Thus, a private ruling may not be cited or relied upon as precedent. The IRS does have the option of redacting the text of a private ruling and issuing it as a revenue ruling, which becomes binding on all taxpayers and the IRS. Some private letter rulings are ultimately published as a public revenue ruling and become binding on the IRS for all ttaxpayers.
30
www.501c3.org
PLR 201218015: Endowment unit payouts are not UBTI (unrelated business taxable income).)
◦ Educational, 501(c)(3) organization was the trustee of six trusts and the legal owner of the trusts’ assets.and the legal owner of the trusts assets.
◦ Organization was the sole beneficiary of five of the trusts and a 50% beneficiary of the sixth. Organization was responsible to 50% beneficiary of the sixth. Organization was responsible to distribute other 50% to other charitable, educational organizations.
31
www.501c3.org
PLR 201218015: Endowment unit payouts are not UBTI (unrelated business taxable income), Cont.),
◦ Organization had invested in both traditional stocks and bonds and in non-traditional assets such as private equity, flexible and in non traditional assets such as private equity, flexible capital, natural resources, inflation hedging and real estate.
32
www.501c3.org
PLR 201218015: Endowment unit payouts are not UBTI (unrelated business taxable income), Cont.),
◦ Organization sought to create a contractual obligation with each trust to issue (sell) proportionate shares, or “units,” of its trust to issue (sell) proportionate shares, or units, of its endowment.
◦ This would entitle the trusts to receive periodic payments based This would entitle the trusts to receive periodic payments based upon the number of units owned.
33
www.501c3.org
PLR 201218015: Endowment unit payouts are not UBTI (unrelated business taxable income), Cont.),
◦ Trusts would receive investment returns equal to that of the endowment.endowment.
◦ Trusts would receive quarterly earnings payments from the organization, based upon a distribution formula.organization, based upon a distribution formula.
34
www.501c3.org
PLR 201218015: Endowment unit payouts are not UBTI (unrelated business taxable income), cont.),
◦ Trusts would have interest in the endowment itself by virtue of its purchased units, but not in its underlying investments.its purchased units, but not in its underlying investments.
35
www.501c3.org
PLR 201218015: Endowment unit payouts are not UBTI (unrelated business taxable income), Cont.),
◦ Bottom line: Are unit purchase payments or payouts UBTI?
36
www.501c3.org
PLR 201218015: Endowment unit payouts are not UBTI (unrelated business taxable income), Cont.),
◦ NO – The IRS found that the issuance of units from the organization to the trusts, the making of or receipt of payments organization to the trusts, the making of or receipt of payments with respect to the units, and the holding and redemption of units will not generate UBTI to the organization.
◦ Investing for the benefit of co-beneficiaries, ad the same time g ,as for the organization, was distinguished from commercial activity.
37
www.501c3.org
PLR 201125043: Non-profits are not prohibited from providing goods or services to a for-profit subsidiary.g p y
◦ 501(c)(3) organization had primary activities of the development of “D,” “E” and the dissemination of “B” information … all for of D, E and the dissemination of B information … all for benefit of the general public.
38
www.501c3.org
PLR 201125043 (Cont.)
◦ Activities were global, through a network of controlled organizations.
◦ Principal business location was in the U S but there were ◦ Principal business location was in the U.S., but there were several foreign subsidiaries
◦ Challenge: Growing industry affected the ability to continue “B” public service, so the organization sought to restructure by public service, so the organization sought to restructure by transferring “E” and other activities to for-profit subsidiaries.
39
www.501c3.org
PLR 201125043 (Cont.)
◦ Organization would keep the core charitable and public educational activities, and retain ownership and management of shares of “E” businesses.shares of E businesses.
◦ The stated reason for change was that a new structure would allow preservation and increase in value of “E” activity, and …
40
www.501c3.org
PLR 201125043 (Cont.)
◦ Restructuring would enable the use of stock of the for-profit as “acquisition currency,” rather than cash or debt, to acquire other entities as part of a geographic and product line expansion other entities as part of a geographic and product line expansion strategy.
◦ Can also attract prospective partners by offering non-controlling equity investment in a for-profit corporationq y p p
◦ Can also attract and retain key employees with equity-based compensation system
41
www.501c3.org
PLR 201125043 (Cont.)
◦ The plan was to form one or more domestic stock corporations (D-subs) and transfer physical assets, contracts and employees associated with “E” activity.associated with E activity.
◦ Then, transfer X% of stock in D-subs to “NewCo,” a wholly-owned for-profit subsidiary, in exchange for Class A common stock of NewCo
◦ Key point: No acquisition debt involved
42
www.501c3.org
PLR 201125043 (Cont.)
◦ The same scenario would take place with foreign stock corporations (F-subs).
◦ The organization would be the majority shareholder of stock in ◦ The organization would be the majority shareholder of stock in NewCo and would directly control NewCo and indirectly control D/F-subs.
◦ B class stocks, if any, would be for outside investors and others B class stocks, if any, would be for outside investors and others and would not be voting shares.
43
www.501c3.org
PLR 201125043 (Cont.)
◦ A key part of the plan was to shift a distribution agreement with an independent party, “P,” from the organization to NewCo, for “E” activities.E activities.
◦ Needless to say, this would be easier to grasp if we knew specifics!specifics!
44
www.501c3.org
PLR 201125043 (Cont.): IRS Rules on five questions (two on UBIT)
◦ The transfer of assets and liabilities related to “E” activities ultimately to NewCo will NOT result in any UBTI (unrelated business taxable income), within the meaning of Sect. 511-514.business taxable income), within the meaning of Sect. 511 514.
◦ Revenue generated through the distribution agreement between “P” and NewCo will be treated as if it was still between organization and “P,” because the nature has not changed. g , gTherefore, there is no UBTI.
45
www.501c3.org
The IRS has been ratcheting up the expectation that a major focus on UBIT is coming.g
2012 Work Plan discusses an upcoming project, but no one sure what that is.what that is.
46
www.501c3.org
One of the biggest hints came in an address by Marcus Owens, former EO Director, back in October 2010.,
“Voluntary” compliance questionnaires were sent to tax-exempt hospitals in 2006, addressing community benefit and executive compensation.p
Questionnaires later were sent to a cross-section of small, mid-sized and large private and public four-year colleges. They focused on UBI, endowments and executive compensation., p
47
www.501c3.org
Owens declared that the IRS was using the questionnaires to gauge taxable activity in “targeted” areas, andy g ,
That UBIT was “tailor-made” for a large-scale compliance check.
Especially since the last substantial look was in 1986
48
www.501c3.org
Given that the 2012 Work Plan indicated a potential UBIT project is forthcoming, it is reasonable to guess, absent other evidence, g, g , ,that the IRS EO division may well be warning tax-exempt hospitals and educational institutions of coming examinations.
Form 990-T analysis may hint at other possible targets.
49
FORM 990‐T ISSUESPatricia Jo Mayer, Moss Adams
99
990-T Issues990-T Issues
• Allocations of costs and expensesAllocationsofcostsandexpenses
• IRSislookingatSect.482onallocationofexpensestoUBIT.
• UBITonalternativeinvestments
51
Allocating Costs And Expenses
• TheCodeprovidesforthedeductibilityofdirectcostsincurredinearningtheincome,aswellasareasonableallocationofindirectcosts.
I l S 512( )(1) UBTI d f d– Ingeneral,Sect.512(a)(1)– UBTIisdefinedasgrossincomederivedfromanyunrelatedtradeorbusinessregularlycarriedonbyit,lessotherwisealloweddeductionsthatare“directlyconnected”(withcertainmodifications).
• Meetrequirementsofsections162,167andotherrelatedprovisions
• Must be proximately and primarily related to the business• Mustbeproximatelyandprimarilyrelatedtothebusinessactivity
52
Allocating Costs And Expenses (Cont.)
• Thereareanumberofrecognizedallocationmethodsthatcanbeused:
– Timesheetsorothertime‐trackingmethodsg– Squarefootage,ifapplicable– GrossincomeAdvertising lineage– Advertisinglineage
– Anyotherreasonableandconsistentmethod
53
Allocation Of Costs And Expenses (Cont.)
• Dualuse– Dualuseoffacilitiesinboththeexemptfunctionandforcommercialpurposes• Example:Amuseumhasatheaterthatitusestoshoweducationalandcommercialfilms.
• Theeducationalfilmsarelikelyrelated.
• The commercial films are probably UBI• ThecommercialfilmsareprobablyUBI.
54
Allocation Of Costs And Expenses (Cont.)
• Dualuse(Cont.):
Allocationofexpensesona“reasonablemethod”p
1. RensselaerPolytechnicInstitute:Allocationbasedonuse
2. IRSpreferredmethod:Allocationbasedonavailabilityforuse1. NOTbeingchallenged,since1.512(a)‐1permits
“ bl th d”“reasonablemethod”
55
Allocation Of Costs And Expenses (Cont.)
• Exploitation
– Anactivitybeyondwhatisnecessarytoaccomplishtheexempty y y p ppurposeissubjecttoUBIT.
• Example: The sale of milk by an experimental dairy farm wouldExample:ThesaleofmilkbyanexperimentaldairyfarmwouldnotproduceUBI.
• But the sale of ice cream produced with the milk product• But,thesaleoficecreamproducedwiththemilkproductwould.
M l t f ti t ff t UBI bj t t
56
– MayapplyexemptfunctionexpensestooffsetUBI,subjecttocertainlimitations
Allocation Of Costs And Expenses (Cont.)
• Limitationsoncertaindeductions:
– Related‐partyrules(Sect.267)p y ( )– Uniformcapitalizationrules(263A)– Mealsandentertainment(274(n))Travel companions– Travelcompanions
– Propertyleasedtoexemptentities– Fines,penalties,kickbacks– Lobbying,etc.
57
Other DeductionsOther Deductions
• Netoperatingloss
– Prioryear’sNOLsgenerated,utilizedandremaining(attachy g g (schedule)
– Make sure activities generating NOLs are trade or businessMakesureactivitiesgeneratingNOLsaretradeorbusiness
K ll d f t d NOL if t l t d f i– KeepallrecordsofgeneratedNOLs,ifgetselectedforexaminfuture
58
– NOLavailableforcarryback2years;forward20.Forms1139or990‐T
Other Deductions (Cont )Other Deductions (Cont.)
• Charitablecontributions:Cantakeadeductionforcharitablecontributions,regardlessofwhetherrelatedtounrelatedactivity,subjectto10%corporateor50%trustlimitations
• StateUBITfilings/taxes:Makesureapplicablestaterequirementsarebeingmet.Ifpayingstatetax,takedeductiononfederal990‐T(cashoraccrualmethod)
• Taxpayments:MustbedonethroughEFTPSp y g
• 990‐T:Availableforpublicinspection
59
Sect 482Sect. 482
• IRSreferencestransferpricingprinciplesunder§482duringexams.– IRShasindicatedthisisanareaofinterestduringexams.– Beaware,anddon’tbeoverlyaggressivewhenallocatingexpensesy gg g p
• Sect.482isonlyavailablefortheuseoftheIRS,notoftaxpayers.
– Inanycaseoftwoormoreorganizationsownedorcontrolledbysameinterests,thesecretarymaydistribute,apportionorallocategross income deductions credits or allowances between or amonggrossincome,deductions,creditsorallowancesbetweenoramongsuchorganizations,tradesorbusinesses,ifnecessarytopreventevasionoftaxesorclearlyreflectincome.
60
Sect 482 (Cont )Sect. 482 (Cont.)
• Allocationofincomeanddeductionsamongtaxpayers:
– Arm’s‐lengthstandardg– Bestmethodsrule– ComparabilityArm’s length range– Arm s‐lengthrange
– Correlativeallocations(increaseincomeofonemember,correspondingdecreaseinincomeofothermember)
61
UBIT On Alternative Investments
• Alternativeinvestments– Partnerships
• Domestic• Foreign
If a joint venture is a member of a second JV which is a member of– IfajointventureisamemberofasecondJV,whichisamemberofathirdJV,theactivitiessimilarlypassthroughtotheexemptorg.
P t hi K 1 B 20 “V” d l t d k t– PartnershipK‐1:Box20“V”code– evaluateandasktaxpreparers;notalwaysdonecorrectly.
62
• ScorporationK‐1income– allUBIT
UBIT On Alternative Investments (Cont.)
C id i ti i f i ti th t i t i U S• ConsiderinvestinginaforeigncorporationthatinvestsinaU.S.partnershipthathasdebt‐financedsecuritiesorrealestate.Incomefromtheforeigncorporationwillbedividends,notUBIT.
• Foreignreporting:– Considerfiling990‐Ttoreportforeignactivity– 990onGuidestar.org,990‐Tnotyet.
• Foreignforms– Form926 (returnbyaU.S.transferorofpropertytoaforeigncorporation)
– Form5471 (informationreturnofU.S.personwithrespecttocertainforeigncorporations)
– Form8865 (returnofU.S.personswithrespecttocertainforeignpartnerships)
63
p p )
APPROACHES FOR AN NPO TO Greg McRay, Foundation Group Inc.
ADJUST TO FEDERAL POLICY SHIFTSSHIFTS
www.501c3.org
UBI/UBIT is not a fundamentally bad concept.• Affords NPOs with alternative stream of additional incomeAffords NPOs with alternative stream of additional income• Can be especially useful during tough economic times• Can expose the organization to a broader audience• May be unavoidable in certain complex situations• May be unavoidable in certain complex situations
65
www.501c3.org
UBI/UBIT is not a fundamentally bad concept (Cont.)• If business activity it is generally well definedIf business activity, it is generally well defined
• If it constitutes a bona-fide trade or business• Is regularly conducted, and
Not s bstantiall related to the e empt p rpose of the • Not substantially related to the exempt purpose of the organization
66
www.501c3.org
UBI/UBIT is not a fundamentally bad concept (Cont.)
• It IS manageable, if you understand what’s required• Segregate it
Follow the rules• Follow the rules• Report on Form 990-T• Pay taxes
67
www.501c3.org
Inherent UBI problems
• IRS scrutiny – more on the way• Public perception – easily misunderstood• Can distract team from the charitable mission• Can distract team from the charitable mission• Hassle factor can make it not worth the effort• Possible legal liability for program activities involved
68
www.501c3.org
Inherent UBI problems (Cont.)
• Percentage limitations can come into play quickly• 5% or less of total gross revenue is generally safe.• 5% to 20% is a typical range• 5% to 20% is a typical range.• 20%-plus is potentially troublesome.
69
www.501c3.org
UBI-avoidance Ideas• Tweak activity to bring in-line with charitable missionTweak activity to bring in line with charitable mission• Convert advertising to sponsorship acknowledgement• Restructuring royalty and licensing agreements• Passive instead of active involvement in revenue-generating • Passive instead of active involvement in revenue-generating
activity• Volunteer labor instead of paid staff
70
www.501c3.org
IRS is looking at revenue streams
• Is it truly related to an exempt purpose?
• IRS applying “fragmentation rule” to parse activity• IRS applying fragmentation rule to parse activity• If an activity is conducted on a scale, larger than is
reasonably necessary to perform an exempt purpose
71
www.501c3.org
IRS is looking at revenue streams (Cont.)
• Current focus on activity exerted by NPO in support of cause marketing/joint ventures
• Is UBI revenue as a percent of total revenue getting too high?
72
www.501c3.org
How to properly structure a taxable subsidiary
• Must have bona fide purpose• Subsidiary must have real purpose, not a sham; purpose
does NOT have to be profit motive howeverdoes NOT have to be profit motive, however
• Not an instrumentality of parentControl can be exercised by non profit parent through • Control can be exercised by non-profit parent through stock ownership and some overlapping governance, but the day-to-day operations must be separate from the parent.
73
www.501c3.org
How to properly structure a taxable subsidiary (Cont.)
• Subsidiary should be its own entity• Needs to be taxed as C corporation to avoid back-end UBIT• Revenue needs to be in form of dividends• Revenue needs to be in form of dividends• Rents, royalties, interest is UBI if from controlled subsidiary
74
www.501c3.org
How to properly structure a taxable subsidiary (Cont.)
• Maintain strict separation• Records, monies, books• Governance (can have overlap)• Governance (can have overlap)• Management
• Control relationship, but not business itself
75
