The Tax Law of Private Foundations - Bruce R. Hopkins - E-Book

The Tax Law of Private Foundations E-Book

Bruce R. Hopkins

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Make sense of the new regulatory requirements with expert clarification and practical tools for compliance - updated through 2019 Private Foundations: Tax Law and Compliance, 5th Edition provides clarification, expert insight, and helpful instruction for executives and supporting professionals navigating extensive federal tax law requirements. This 2019 Cumulative Supplement captures the latest regulatory developments for easy reference. Despite their relatively low numbers, private foundations are subject to complex, burdensome regulations that continue to expand. This book summarizes and clarifies the statutory regulations governing private foundations, offers expert insight into the underlying logic, and provides a host of practical tools that ease the filing process and help ensure compliance with the latest laws.

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Table of Contents

Cover

Preface

Book Citations

CHAPTER ONE: Introduction to Private Foundations

§ 1.1 PRIVATE FOUNDATIONS: UNIQUE ORGANIZATIONS

§ 1.2 DEFINITION OF PRIVATE FOUNDATION

§ 1.9 PRIVATE FOUNDATION SANCTIONS

§ 1.10 STATISTICAL PROFILE

NOTE

CHAPTER TWO: Starting, Funding, and Governing a Private Foundation

§ 2.1 CHOICE OF ORGANIZATIONAL FORM

§ 2.5 ACQUIRING RECOGNITION OF TAX-EXEMPT STATUS

§ 2.6 SPECIAL REQUIREMENTS FOR CHARITABLE ORGANIZATIONS

§ 2.7 WHEN TO REPORT BACK TO THE IRS

NOTE

CHAPTER THREE: Types of Private Foundations

§ 3.1 PRIVATE OPERATING FOUNDATIONS

§ 3.3 CONDUIT FOUNDATIONS

NOTE

CHAPTER FOUR: Disqualified Persons

CHAPTER FIVE: Self-Dealing

§ 5.1 PRIVATE INUREMENT DOCTRINE

§ 5.2 PRIVATE BENEFIT DOCTRINE

§ 5.3A EXCESS COMPENSATION TAX

§ 5.4 SALE, EXCHANGE, LEASE, OR FURNISHING OF PROPERTY

§ 5.5 LOANS AND OTHER EXTENSIONS OF CREDIT

§ 5.6 PAYMENT OF COMPENSATION

§ 5.8 USES OF INCOME OR ASSETS BY DISQUALIFIED PERSONS

§ 5.11 INDIRECT SELF-DEALING

§ 5.12 PROPERTY HELD BY FIDUCIARIES

§ 5.15 ISSUES ONCE SELF-DEALING OCCURS

NOTES

CHAPTER SIX: Mandatory Distributions

§ 6.1 DISTRIBUTION REQUIREMENTS – IN GENERAL

§ 6.2 ASSETS USED TO CALCULATE MINIMUM INVESTMENT RETURN

§ 6.5 QUALIFYING DISTRIBUTIONS

NOTES

CHAPTER SEVEN: Excess Business Holdings

§ 7.1 GENERAL RULES

§ 7.2 PERMITTED AND EXCESS HOLDINGS

§ 7.3 FUNCTIONALLY RELATED BUSINESSES

NOTES

CHAPTER EIGHT: Jeopardizing Investments

§ 8.3 PROGRAM-RELATED INVESTMENTS

NOTE

CHAPTER NINE: Taxable Expenditures

§ 9.1 LEGISLATIVE ACTIVITIES

§ 9.2 POLITICAL CAMPAIGN ACTIVITIES

§ 9.3 GRANTS TO INDIVIDUALS

§ 9.9 SPENDING FOR NONCHARITABLE PURPOSES

NOTES

CHAPTER TEN: Tax on Investment Income

§ 10.3 FORMULA FOR TAXABLE INCOME

§ 10.5 FOREIGN FOUNDATIONS

NOTES

CHAPTER ELEVEN: Unrelated Business Activity

§ 11.2 EXCEPTIONS

§ 11.3 RULES SPECIFICALLY APPLICABLE TO PRIVATE FOUNDATIONS

§ 11.4 UNRELATED DEBT-FINANCED INCOME RULES

§ 11.5 CALCULATING AND REPORTING THE TAX

NOTES

CHAPTER THIRTEEN: Termination of Foundation Status

§ 13.1 VOLUNTARY TERMINATION

§ 13.3 TRANSFER OF ASSETS TO A PUBLIC CHARITY

§ 13.4 OPERATION AS A PUBLIC CHARITY

§ 13.6 TERMINATION TAX

NOTES

CHAPTER FOURTEEN: Charitable Giving Rules

§ 14.1 CONCEPT OF GIFT

§ 14.4 DEDUCTIBILITY OF GIFTS TO FOUNDATIONS

§ 14.5 QUALIFIED APPRECIATED STOCK RULE

§ 14.9 ADMINISTRATIVE CONSIDERATIONS

NOTES

CHAPTER FIFTEEN: Private Foundations and Public Charities

§ 15.2 EVOLUTION OF LAW OF PRIVATE FOUNDATIONS

§ 15.5 SERVICE PROVIDER ORGANIZATIONS

§ 15.7 SUPPORTING ORGANIZATIONS

§ 15.8 CHANGE OF PUBLIC CHARITY CATEGORY

§ 15.9 NONCHARITABLE SUPPORTED ORGANIZATIONS

NOTES

CHAPTER SIXTEEN: Donor-Advised Funds

§ 16.1 BASIC DEFINITIONS

§ 16.3 TYPES OF DONOR FUNDS

§ 16.9 STATUTORY CRITERIA

§ 16.12 TAX REGULATIONS

§ 16.13 DAF STATISTICAL PORTRAIT

§ 16.14 CRITICISMS AND COMMENTARY

NOTES

Table of Cases

Table of IRS Revenue Rulings and Revenue Procedures

Table of IRS Private Determinations Cited in Text

Table of IRS Private Letter Rulings, Technical Advice Memoranda, and General Counsel Memoranda

About the Author

About the Online Resources

Cumulative Index

End User License Agreement

Guide

Cover

Table of Contents

Begin Reading

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The Tax Law of Private Foundations

2019 Cumulative Supplement

Fifth Edition

 

 

Bruce R. Hopkins

 

 

 

 

 

 

Copyright © 2020 by John Wiley & Sons, Inc. All rights reserved.

Published by John Wiley & Sons, Inc., Hoboken, New Jersey.Published simultaneously in Canada.

No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning, or otherwise, except as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without either the prior written permission of the Publisher, or authorization through payment of the appropriate per-copy fee to the Copyright Clearance Center, Inc., 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, fax (978) 646-8600, or on the Web at www.copyright.com. Requests to the Publisher for permission should be addressed to the Permissions Department, John Wiley & Sons, Inc., 111 River Street, Hoboken, NJ 07030, (201) 748-6011, fax (201) 748-6008, or online at http://www.wiley.com/go/permissions.

Limit of Liability/Disclaimer of Warranty: While the publisher and author have used their best efforts in preparing this book, they make no representations or warranties with respect to the accuracy or completeness of the contents of this book and specifically disclaim any implied warranties of merchantability or fitness for a particular purpose. No warranty may be created or extended by sales representatives or written sales materials. The advice and strategies contained herein may not be suitable for your situation. You should consult with a professional where appropriate. Neither the publisher nor author shall be liable for any loss of profit or any other commercial damages, including but not limited to special, incidental, consequential, or other damages.

For general information on our other products and services or for technical support, please contact our Customer Care Department within the United States at (800) 762-2974, outside the United States at (317) 572-3993 or fax (317) 572-4002.

Wiley publishes in a variety of print and electronic formats and by print-on-demand. Some material included with standard print versions of this book may not be included in e-books or in print-on-demand. If this book refers to media such as a CD or DVD that is not included in the version you purchased, you may download this material at http://booksupport.wiley.com. For more information about Wiley products, visit www.wiley.com.

Library of Congress Cataloging-in-Publication Data

ISBN 978-1-119-51258-5 (main edition)

ISBN 978-1-119-61424-1 (supplement)

ISBN 978-1-119-61447-0 (ePDF)

ISBN 978-1-119-61449-4 (ePub)

Cover Design: Wiley

Cover Image: © phleum / iStockphoto

Preface

This is the first supplement to accompany The Tax Law of Private Foundations, Fifth Edition. The supplement covers events occurring from the middle of 2018 (where the book ended) and through the middle of 2019.

Most of the law developments that have occurred during the period reflected in this supplement concern the self-dealing rules, with emphasis on the law concerning indirect self-dealing. The book's treatment of this area of private foundation law has been rewritten and expanded. Particular attention has been accorded the estate administration exception, in part because of two recent significant IRS private letter rulings on the point, plus a ruling on the matter of a foundation's expectancy.

Private foundation law is not frequently the subject of court opinions. One court case emerged during the covered period: the Dieringer case. Framed as an estate tax charitable deduction valuation case, the set of facts really is a case study in indirect self-dealing. The case is treated from that perspective in this supplement.

Other interesting private letter rulings during the period include aspects of the mandatory payout rule, the law concerning functionally related businesses and program-related investments, spending for charitable purposes, and the qualified appreciated stock rule.

There was some hope that the proposed Department of the Treasury regulations concerning donor-advised funds would materialize during the period—they are likely to constitute the stuff of a supplement by themselves—but, to date, nothing in that regard has occurred.

A supplement of this nature would not be complete without an update on applicable law generated by the Tax Cuts and Jobs Act. Included in this supplement are summaries of the Treasury Department's and the IRS's interim guidance on the bucketing rule and the fringe benefit expense rules.

Thanks go to Brian T. Neill, Banurekha Venkatesan, and Elisha Benjamin, at John Wiley & Sons, Inc., for their hard work and invaluable help in connection with preparation of this supplement.

BRUCE R. HOPKINS

Book Citations

Throughout this book, 14 books by the authors (in some instances, as co-author), all published by John Wiley & Sons, are referenced in this way:

Hopkins,

IRS Audits of Tax-Exempt Organizations: Policies, Practices, and Procedures

(2008):

IRS Audits

.

Blazek,

IRS Form 1023 Tax Preparation Guide

(2005):

IRS Form 1023 Tax Preparation Guide

.

Hopkins,

The Law of Fundraising, Fifth Edition

(2013):

Fundraising

.

Hopkins,

The Law of Intermediate Sanctions: A Guide for Nonprofits

(2003):

Intermediate Sanctions

.

Hopkins,

The Law of Tax-Exempt Organizations, Twelfth Edition

(2019):

Tax-Exempt Organizations

.

Hopkins,

Nonprofit Governance: Law, Practices & Trends

(2009):

Nonprofit Governance

.

Blazek,

Nonprofit Financial Planning Made Easy

(2008):

Nonprofit Financial Planning Made Easy

.

Hopkins,

Nonprofit Law for Colleges and Universities: Essential Questions and Answers for Officers, Directors, and Advisors

(2011):

Colleges and Universities

.

Hopkins,

Planning Guide for the Law of Tax-Exempt Organizations: Strategies and Commentaries

(2004):

Planning Guide

.

Hopkins,

The Tax Law of Charitable Giving, Fifth Edition

(2014):

Charitable Giving

.

Hopkins,

The Tax Law of Unrelated Business for Nonprofit Organizations

(2005):

Unrelated Business

.

Blazek,

Tax Planning and Compliance for Tax-Exempt Organizations, Fourth Edition

(2004):

Tax Planning and Compliance

.

Hopkins,

The Law of Tax-Exempt Healthcare Organizations, Fourth Edition

(2013):

Healthcare Organizations

.

Hopkins,

Tax-Exempt Organizations and Constitutional Law: Nonprofit Law as Shaped by the U.S. Supreme Court

(2012):

Constitutional Law

.

The third, fifth, tenth, twelfth, and thirteenth of these books are annually supplemented. Also, updates on all of the foregoing law subjects (plus private foundations law) are available in Bruce R. Hopkins' Nonprofit Counsel, a monthly newsletter also published by Wiley.

CHAPTER ONEIntroduction to Private Foundations

§ 1.1 Private Foundations: Unique Organizations

§ 1.2 Definition of Private Foundation

§ 1.9 Private Foundation Sanctions

§ 1.10 Statistical Profile

§ 1.1 PRIVATE FOUNDATIONS: UNIQUE ORGANIZATIONS

p. 1, first line. Delete millions of and insert:

over 1.5 million1

p. 1. Delete second paragraph.

p. 2, note 1. Change footnote number to 1.1.

§ 1.2 DEFINITION OF PRIVATE FOUNDATION

p. 5, note 10. Insert before period:

; IRS Revenue Procedure (Rev. Proc.) 2019-5, 2019-1 I.R.B. 230, § 7.03.

§ 1.9 PRIVATE FOUNDATION SANCTIONS

p. 26, note 150. Delete text and insert:

Reg. § 53.6011-1(b). See § 12.3(d). This return is also used in connection with excise taxes imposed in the donor-advised fund context (see § 16.9, text accompanied by notes 96–105).

§ 1.10 STATISTICAL PROFILE

p. 28.Delete last two paragraphs and insert:

According to the Foundation Center's data for 2015, the assets of private foundations in the United States totaled $860 billion and qualifying distributions totaled $62.8 billion.

NOTE

1

The IRS Data Book, 2018 (Pub. 55B) informs that there are, as of the federal government's fiscal year 2018, 1,327,714 recognized charitable and like organizations in the United States, plus 115,778 nonexempt charitable trusts and split-interest trusts and 216 apostolic entities. This number of charitable organizations does not include religious organizations that are not required to seek recognition of tax exemption or entities covered by a group exemption.

CHAPTER TWOStarting, Funding, and Governing a Private Foundation

§ 2.1 Choice of Organizational Form

§ 2.5 Acquiring Recognition of Tax-Exempt Status

(a) Preparation of Form 1023

(b) Suggestions for Foundation-Sensitive Parts

(c) Form 1023-EZ

(d) Recognition Application Procedure and Issuance of Determination Letters

§ 2.6 Special Requirements for Charitable Organizations

§ 2.7 When to Report Back to the IRS

(a) When Should a Ruling Be Requested?

(b) Changes in Tax Methods

§ 2.1 CHOICE OF ORGANIZATIONAL FORM

p. 30, note 2. Delete IRS Revenue Procedure (Rev. Proc.) and insert Rev. Proc.

§ 2.5 ACQUIRING RECOGNITION OF TAX-EXEMPT STATUS

(a) Preparation of Form 1023

p. 41, note 55. Delete 2018-5, 2018-1 I.R.B. 235 §§ 4.02 and insert 2019-5, 2019-1 I.R.B. 230 § 4.02(1).

(b) Suggestions for Foundation-Sensitive Parts

p. 47, note 66. Delete 2018-5, 2018-1 I.R.B. 235 and insert 2019-5, 2019-1 I.R.B. 230.

(c) Form 1023-EZ

p. 56, note 92. Delete 2018-5, 2018-1 I.R.B. 235 and insert 2019-5, 2019-1 I.R.B. 230.

p. 56, first complete paragraph, fifth line. Delete 34 and insert 25.

p. 56, second complete paragraph, third line. Insert as third sentence:

The IRS's procedural rules state that a taxpayer may not rely on or use a determination letter issued to another taxpayer.93.1

(d) Recognition Application Procedure and Issuance of Determination Letters

p. 56, note 95. Delete 2018-5, 2018-1 I.R.B. 235 and insert 2019-5, 2019-1 I.R.B. 230.

p. 57, note 100. Delete 2018-5, 2018-1 I.R.B. 235 and insert 2019-5, 2019-1 I.R.B. 230.

p. 58, note 107. Delete 2018-5, 2018-1 I.R.B. 235 and insert 2019-5, 2019-1 I.R.B. 230.

§ 2.6 SPECIAL REQUIREMENTS FOR CHARITABLE ORGANIZATIONS

p. 61, note 115, last line. Delete 2018-5, 2018-1 I.R.B. 235 and insert 2019-5, 2019-1 I.R.B. 230.

p. 61, note 116. Delete 2018-5, 2018-1 I.R.B. 235 and insert 2019-5, 2019-1 I.R.B. 230.

p. 61, note 122. Delete 2018-5, 2018-1 I.R.B. 235 and insert 2019-5, 2019-1 I.R.B. 230.

§ 2.7 WHEN TO REPORT BACK TO THE IRS

p. 64, carryover paragraph, tenth line. Insert footnote 138.1 following period:

138.1Rev. Proc. 2019-5, 2019-1 I.R.B. 230 §§ 4.02(6), (7).

(a) When Should a Ruling Be Requested?

p. 64, fourth complete paragraph, second line. Delete $10,000 and insert $30,000.

p. 64, note 139. Delete 2018-1, 2018-1 I.R.B. 1 and insert 2019-1, 2019-1 I.R.B. 1, App. A.

p. 64, note 140. Delete 2018-2, 2018-1 I.R.B. 106 and insert 2019-2, 2019-1 I.R.B. 106.

(b) Changes in Tax Methods

p. 65, fifth paragraph, third line. Delete $350 and insert $6,200.

p. 65, fifth paragraph, third line. Insert footnote 142.1 following comma:

142.1Rev. Proc. 2019-1, 2019-1 I.R.B. 1, App. A.

NOTE

93.1

Id

. § 11.02(1).

CHAPTER THREETypes of Private Foundations

§ 3.1 Private Operating Foundations

(c) Individual Grant Programs

(h) Conversion to or from Private Operating Foundation Status

§ 3.3 Conduit Foundations

§ 3.1 PRIVATE OPERATING FOUNDATIONS

(c) Individual Grant Programs

p. 93. Insert following carryover paragraph and before heading:

A third example of significant involvement was provided when the IRS considered a situation involving a private operating foundation with the mission of conducting educational programs assisting underserved and impoverished individuals. The foundation builds the capacity of providers by enhancing their financial sustainability and operational effectiveness. It provides technical assistance to policymakers to support early learning providers, offers technical assistance to enhance use of best practices in childhood development, and conducts research. The foundation proposed to operate a loan program in furtherance of its charitable and educational purposes, including making loans to service providers who cannot qualify for commercial loans; loans may also be made to intermediaries and for-profit entities. Loans to service providers will involve below-market interest rates or be interest-free; loans to for-profit organizations will have below-market rates. The IRS concluded that this foundation will maintain significant involvement in the active programs in support of which the loans will be made. The IRS noted that the foundation employs full-time experts in education and related areas, and funds consultants who specialize in assisting service providers and intermediaries who will receive training, knowledge-sharing, data collection, and educational materials to facilitate capacity-building. The foundation will be involved in the structuring of loans, oversee operations of partners funded with loans, and otherwise plan “substantive elements” with respect to the loan program.32.1

(h) Conversion to or from Private Operating Foundation Status

p. 105, first complete paragraph, third line. Insert footnote 76.1 following period:

76.1Rev. Proc. 2019-5, 2019-1 I.R.B. 230 § 7.04(4).

§ 3.3 CONDUIT FOUNDATIONS

p. 109, carryover paragraph. Insert footnote 101.1 at end of last line:

101.1The IRS granted an extension of time to a private foundation to make an election under the conduit foundation rules, which is to be timely done by filing an amended annual information return and the requisite statement (Reg. § 301.9100-1), after the firm that prepared the return for the year involved discovered that its calculation of excess distribution carryovers was incorrect (Priv. Ltr. Rul. 201831007).

NOTE

32.1

Priv. Ltr. Rul. 201821005.

CHAPTER FOURDisqualified Persons

p. 121, note 2. Insert as second paragraph:

The term disqualified person is defined somewhat differently in connection with public charities (IRC § 4958(f)). See, e.g., § 4.4, note 60.

CHAPTER FIVESelf-Dealing

§ 5.1 Private Inurement Doctrine

§ 5.2 Private Benefit Doctrine

§ 5.3A Excess Compensation Tax

§ 5.4 Sale, Exchange, Lease, or Furnishing of Property

(a) Sales

(b) Exchanges

§ 5.5 Loans and Other Extensions of Credit

§ 5.6 Payment of Compensation

(c) Definition of

Reasonable

§ 5.8 Uses of Income or Assets by Disqualified Persons

§ 5.11 Indirect Self-Dealing

(a) Transactions with Controlled Entities

(b) Concept of

Control

(c) Transactions and the Control Element

(d) Exceptions

(e) Representative Case (Reprise)

(f) Fraudulent Investment Schemes

§ 5.12 Property Held by Fiduciaries

(a) Concept of the

Expectancy

(b) General Rules

(c) Estate Administration Exception

§ 5.15 Issues Once Self-Dealing Occurs

(a) Undoing the Transaction

§ 5.1 PRIVATE INUREMENT DOCTRINE

p. 138, first complete paragraph, sixth line. Insert footnote 12.1 following period:

12.1An organization was denied recognition of exemption as a charitable entity in part because it issued voting stock providing equity interests to its shareholders, which the IRS found to be a violation of the private inurement doctrine (Priv. Ltr. Rul. 201918020).

p. 140. Insert as third paragraph, before heading:

The contours of the doctrine of private inurement have been immensely influenced by the intermediate sanctions rules.24.1 Indeed, in some ways, the intermediate sanctions rules can be viewed as codification of the private inurement doctrine. Disqualified persons are essentially the same as insiders; excessive benefit transactions are much the same as private inurement transactions.24.2 Developments in the law concerning the intermediate sanctions rules help shape the private inurement doctrine; the reverse is also the case.24.3

§ 5.2 PRIVATE BENEFIT DOCTRINE

p. 141, carryover paragraph, first complete sentence on page. Delete and insert:

Thus, the private benefit doctrine is broader than the private inurement doctrine in the sense that its applicability is not confined to situations involving organizations' insiders but has the potential for applying with respect to any person or person.30.1

p. 141, carryover paragraph, last sentence. Delete and insert:

By contrast, the IRS does not recognize the concept of incidental private inurement.30.2

p. 145. Insert as first complete paragraph:

Other examples nicely illustrate the extent to which the IRS can apply the private benefit doctrine. A nonprofit corporation, formed to provide training to softball and baseball umpires, and to coordinate and schedule games and tournaments, is also involved in assigning umpires to games and promoting ethical standards among baseball officials; this entity was denied recognition of tax exemption as a charitable or educational organization, in part on the ground that it is serving the private interests of the umpires, who are paid for their services.52.1 The IRS is ruling that an organization with a small board of trustees or directors is inherently violating the private benefit doctrine, so that a governing board of this nature cannot qualify as an exempt charitable organization.52.2

p. 145. Insert as third complete paragraph:

As an illustration of incidental private benefit, a tax-exempt charitable organization that allocated Medicaid patients to physicians in private practice was held to provide qualitatively and quantitatively incidental private benefit to the physicians, inasmuch as it was “impossible for this organization to further its exempt purposes without providing some benefit to these physicians.54.1 Similarly, the IRS ruled that an exempt hospital's investment in a for-profit medical malpractice insurance company, using funds paid by its staff physicians, furthered charitable purposes and was deemed not to extend impermissible private benefit, because the investment was required for the writing of insurance for the physicians, the physicians needed the insurance to practice at the hospital, and the hospital needed the physicians to provide healthcare services to its communities.54.2 Likewise, the IRS ruled that construction and maintenance of a recreational path on an island was charitable activity, with any resulting private benefit accruing to the residents of the island dismissed as incidental.54.3 Further, the IRS ruled that a public charity could restore an exempt social club's historic building, where the public would be given substantial access to the facility, with the resulting private benefit to the club and its members regarded as incidental.54.4

p. 145, note 52, third line. Delete text following period.

p. 145, note 56. Insert following existing text:

Unwarranted private benefit was found where a scholarship-granting organization was making grants only to members of one family (and descendants of the founder of the organization); a court condoned revocation of this entity's tax exemption (Educational Assistance Found. for the Descendants of Hungarian Immigrants in the Performing Arts, Inc. v. United States, 111 F. Supp. 3d 34 (D.D.C. 2015) (on appeal)).

p. 150.Insert following second bullet point and before heading:

§ 5.3A EXCESS COMPENSATION TAX

An excise tax of 21 percent is imposed on tax-exempt organizations paying compensation in excess of $1 million, and paying separation amounts, where the employee is one of the five highest-compensated employees.79.1 The tax base is the excess compensation amount.

The Department of the Treasury and the IRS issued interim guidance as to this tax regime. Regulations will be issued in proposed form; in the interim, persons may base their positions on a good faith, reasonable interpretation of the statute. The positions reflected in this guidance constitute this type of an interpretation.79.2

This tax is imposed on an applicable tax-exempt organization,79.3 which includes conventional tax-exempt organizations.79.4 Thus, private foundations are applicable tax-exempt organizations. This tax is imposed on excess compensation, not necessarily excessive compensation, so it is possible that a compensation package can attract both this tax (imposed on the foundation) and a self-dealing tax79.5 (imposed on the self-dealer).79.6

The IRS's interim guidance states that the common-law employer is liable for the tax. Thus, a common-law employer may not avoid treating a payment as remuneration by reason of a third-party payor arrangement, such as a payroll agent, common paymaster, professional employer organization, or unrelated management company. Once an employee is a covered employee, he or she is a covered employee for subsequent tax years.

The guidance states that whether an employee is one of the five highest-compensated employees is determined separately for each applicable tax-exempt organization and not for a group of related organizations; thus, each applicable tax-exempt organization has its five highest-compensated employees. As a result, in many cases, a group of related organizations will have more than five covered employees.

This guidance also states that an amount of compensation is subject to a substantial risk of forfeiture only if entitlement to the amount is conditioned on the future performance of substantial services or on the occurrence of a condition that is related to a purpose of the compensation if the possibility of forfeiture is substantial. The amount of remuneration treated as paid at vesting is the present value of the remuneration in which the covered employee vests. The employer must determine the present value using reasonable actuarial assumptions regarding the time and likelihood of actual or constructive payment. An individual may perform services as a common-law employee for two related organizations during a calendar year, one or both of which is an applicable tax-exempt organization, in which case remuneration paid for the tax year is aggregated for purposes of determining whether excess remuneration has been paid. The guidance provides rules for allocating liability for the excise tax between the employers.

Compensation of a covered person by a related organization or governmental entity is taken into account for these purposes.79.7 A person is a related person if the person controls or is controlled by the tax-exempt organization,79.8 is controlled by one or more persons that control the exempt organization, or is a supporting organization79.9 with respect to the organization.79.10 The IRS's interim guidance notes that related persons include related taxable organizations and related governmental units or other governmental entities.

The way this tax regime is structured potentially poses a tax problem in a circumstance where one or more individuals are volunteering services to family private foundations (or perhaps other types of foundations). Consider a typical situation where individuals involved in a successful family business establish a private foundation, with these individuals making financial contributions to the foundation and devoting their personal time in administering the foundation's affairs as unpaid trustees, directors, officers, or staff. There are no paid employees, or employees are paid small amounts. These individuals could be considered employees of the foundation for purposes of application of this excise tax. Thus, one or more highly compensated employees of the company could be included in the group of the foundation's top five compensated employees. The excise tax is prorated among entities paying compensation,79.11 so that the company could owe an excise tax on compensation exceeding $1 million.

§ 5.4 SALE, EXCHANGE, LEASE, OR FURNISHING OF PROPERTY

p. 150, first complete paragraph. Convert first sentence into separate paragraph.

p. 150.Following new first complete paragraph, insert:

(a) Sales

p. 150. Insert as last complete paragraph:

A transfer of property to a private foundation, by a disqualified person with respect to the foundation, in return for cancellation of the self-dealer's indebtedness to the foundation is regarded by the IRS as a sale of the property by the disqualified person to the foundation and thus an act of self-dealing.84.1

p. 152, first heading. Change heading section reference to (a.1).

(b) Exchanges