Bryan Del RosarioAnalyzing Complex Nonprofit Laws for Members Since 1957

By: Bryan Del Rosario In: Philanthropy

18 Nov 2013

Gifts to community foundations have long been used as planning tools by individuals with philanthropic goals. Apart from qualifying for the maximum income tax deduction and the estate tax deduction, the community foundation is a vehicle that provides donors a variety of opportunities for fulfilling their philanthropic objectives. Among the most critical outcomes in community foundation success is ensuring that legal processes, including compliance with the tax code, are adhered to. And because nearly all federal and state laws pertain, directly or indirectly, to tax-exempt organizations, there are few areas of law that have no bearing whatsoever on such exempt entities, including community foundations.

Successfully interpreting and reconciling nonprofit laws can tax even the most capable of community foundation execs and program managers. In order to avoid the severe reputational and financial risks that might otherwise result, prudent foundations should seek advice from legal advisors competent in charitable organizations.

The Council on Foundations Legal Services

The Council on Foundations understands that community foundations are responsible for a wide range of activities related to grantmaking and charitable programs. In order to assist members, the Council offers legal services and makes resources available to help unravel the meaning of the regulatory and legal issues so foundations can work within the limits of the law to achieve their objectives.

Requests for Information (RFIs)

The Council, like any organization, strives to set a high bar when it comes to meeting its members’ customer service standards. To that end, Legal Services make every effort to respond to inquiries either via telephone or e-mail (preferred) within the next three to four business days in which the request was received (the timing of each response depends on the volume of messages and the order in which they are received).

Legal Services has received and addressed comprehensive community foundation RFIs in topics such as (not exhaustive):

Scholarships are one of the most frequent topics our legal team discusses with community foundations. Legal Services understands there is little law directly pertaining to grantmaking to individuals by public charities, but we may be able to direct you to the right resources for issues such as:

· Can a preference be given to female applicants?

· Are loan forgiveness awards qualified scholarships under the Internal Revenue Code?

· Do you have sample documents for scholarship funds?

Donor Advised Funds are a tax and legal minefield for community foundations, all resting on the fundamental fact that the fund is an alternative to private foundation. While we wait further instruction from the Treasury Department on regulation of DAF’s the Council has numerous resources to assist you with managing your donor advised funds. Here are some of our most frequently requested materials:

- Council on Foundations Donors Advised Funds Booklet

- FAQs for Taxable Distributions for Donor Advised Funds

- Excess Business Holding Rules

Supporting Organizations are important to understand because they can require grantmakers to exercise different types of oversight of their grantees. For example, a qualified supporting organization must satisfy an organizational test, an operational test, a relationship test, and a disqualified person control test. For more information, see Determination of Supporting Organization Status.

Grants to Non-charities may be given to non-charities and organizations awaiting their exempt status; however, Expenditure Responsibility rules will apply. If you’ve ever taken a call about a grant to a specific individual receiving medical treatment, a specific family who lost their home, a grant for a government entity like a local park, or another eyebrow raising call, this resource will become essential to your community foundation.

Executive Compensation is an important section of your IRS Form 990 because private inurement doctrine mandates that the compensation amount paid by most tax-exempt organizations be reasonable. For more information on how to determine the reasonableness of compensation, visit our website.

If this blog post gave you a headache, don’t worry. Council on Foundations knowledgeable staff can answer almost any aspect of charitable organizations. For more information on Legal Services and a host of other legal resources, visit our Legal Information page on the Council website; or to have your foundation-specific RFIs addressed, contact Legal Services at legal@cof.org.

Bryan Del Rosario is a Law Clerk with the Council on Foundations.

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