Is Your 990-PF Working Against You?

Lauren Haverlock has practiced public accounting since 2004. As a senior manager at Moss Adams LLP, she provides compliance and consulting services to all types of exempt organizations, including public charities and private foundations.

This post is part of a Transparency Talk series, presented in partnership with the Conrad N. Hilton Foundation, examining the importance of the 990-PF, the informational tax form that foundations must annually file. The series will explore the implications of the open 990; how journalists and researchers use the 990-PF to understand philanthropy; and its role, limitations, and potential as a communications tool.

Join us at a session about the Open 990PF in partnership with Grantmakers of Oregon and Southwest Washington. Learn more or register here.

As a CPA specializing in tax exempt organizations, the annual 990-PF form that private foundations must file with the Internal Revenue Service (IRS) is the source of many questions I receive. And now that this data is not just publicly available, but open, it is wise for us all to take a closer look at whether your 990-PF may unintentionally be working against you.

Of course, the IRS has been gathering data on 990-PF filers for years. It has used this data to better identify and investigate anomalous and non-compliant private foundations. But now, all electronically filed Form 990-PF data is available to the general public in machine readable formats opening up the investments, portfolio performance, grant recipients, expenses, and transactions of foundations like never before.

Now that this information is publicly available in machine readable format, it can be easily aggregated to provide valuable insight into the industry as a whole. It can also highlight outliers. Ultimately, the availability of this data provides a window into private foundations, many of which were previously used to operating outside the public eye. As Glasspockets has reported, currently only 10% of U.S. foundations even have a website, so if your foundation is among the 90% that do not, that means that your 990-PF is the only source of intelligence about your organization.

In the new world of readily available machine-readable Form 990s, private foundations will want to verify their tax filings—the source of their data—are prepared completely and accurately. Common mistakes to watch out for when filing the Form 990-PF are detailed in this article.

Transactions

Private foundations face more burdensome regulations on investments and expenses than 501(c)(3) public charities:

• Restrictions on how money is spent
• Requirements as to how much money is used for charitable purposes
• Rules regarding how endowments can be invested

The consequences for noncompliance in regards to the above transactions can range from excise-tax penalties assessed on the foundation or its managers to revocation of exempt status.

Specific items to be aware of include the following:

• Prohibited transactions with a disqualified person, including trustees, directors, and foundation managers as well as certain family members and businesses of the aforementioned.
• Failure to meet the minimum distribution requirement in a previous year
• Excess business holdings of an active trade or business
• Risky asset investments that could jeopardize a foundation’s charitable purpose (for example, not having a diversified portfolio of investments)
• Certain types of expenditures, such as foreign grants, grants to for-profit entities, unapproved scholarships, or lobbying and political activities, are either prohibited outright or require extra diligence to be permissible.

For example, foundations are permitted to reasonably compensate a disqualified person for personal services. And an organization can grant funds to foreign or for-profit organizations if expenditure responsibility is exercised. And more details about what is permissible in regards to political funding appears below. But the main point here is just the affirmation of these closely scrutinized transactions could raise the risk profile of a private foundation.

Net Investment Income

Although considered tax-exempt, private foundations are still required to pay an excise tax at a rate of 1% or 2% of the income they generate. As such, investment income is of intense focus when foundations file their tax returns. Foundations should remember that the calculation of taxable income should be undertaken with the same tax-reduction mindset that for profit entities and individuals undertake.

“Ultimately, the availability of this data provides a window into private foundations, many of which were previously used to operating outside the public eye.”

The Form 990-PF reports income both on a book and on a tax basis on Page one. A foundation should ensure that it is properly capturing all taxable income from all sources and not simply assuming that taxable income is the amount reported on their financial statements. For example, private foundations with “alternative investments,” including private equity, hedge funds, managed futures, real estate, commodities and derivatives contracts, could receive a Schedule K-1 from their investments. Flow-through income from that Schedule K-1 should be reported in the foundation’s tax-basis income statement.

Additionally, any excise tax a foundation pays could bring negative attention. If an entity consistently pays the higher excise tax of 2%, it could lead donors to question why the foundation is giving money to the IRS in the form of taxes rather than providing grants.

Balance-Sheet Investments

Private foundations are required to report the details of their investments, including the number of shares and types of publicly traded stock held. Reporting this can often be burdensome and feel invasive, but failure to include this information could result in an incomplete Form 990-PF. An incomplete Form 990-PF is deemed to have never been filed in the first place, which could result in late-filing penalties or revocation of exemption if it occurs three years in a row.

Lobbying and Political Activities

Private foundations are prohibited from undertaking any lobbying or political activities, unlike 501(c)(3) public charities, which are permitted to undertake limited lobbying activities. However, not all actions related to politics are prohibited—private foundations can undertake certain bipartisan educational activities or support charities that undertake lobbying if they follow certain guidelines. For example, the specific project grant rule, when followed, could allow a private foundation to fund a project that explicitly has lobbying activities.

Grant Reporting

The grant reporting schedule seems innocuous, but it can weave a story of relationships that extend beyond grantor and grantee. The grant recipients of private foundations are public, which means the public can gather data regarding which organizations a foundation supports by using data-mining tools.

Although this information can be valuable to fundraisers and your grantmaking peers, it can also reveal an informal or unclear grantmaking process and serve as an inadvertent disclosure of taxable expenditures. As such, a foundation should ensure that there is a due diligence process related to grant recipients that verifies if a recipient is a qualified 501(c)(3) public charity, and use the space provided in the 990-PF (Part XV) to explain its grantmaking process, deadlines, and eligibility requirements.

While grants to other types of entities are permitted, if certain expenditure responsibility procedures are not followed, this type of granting could possibly raise a red flag. Any grantee that reports a foreign address, appears to be a corporation, or otherwise stands out could still garner a foundation unwanted attention from the general public and IRS. Grantmakers making grants to foreign organizations also have the option of using a process called equivalency determination to demonstrate how they determined that a foreign organization is equivalent to a U.S. charity. The grantmaker is required to collect a specific set of data, as outlined in IRS Revenue Procedure 92-94, that provides details about the grantee’s operations and finances.

Private foundation contributor schedules are public, which means anyone can pull these donor lists. With open-source data, foundation support can be easily compiled and aggregated to better understand an ecosystem of donors and support—keeping a private foundation accountable to the community it serves.

Even though the Form 990-PF is a government filing, its public nature and the increased openness of its data may lead to both greater interest and scrutiny in the private foundations filing it. Take control of your financial story by filing timely, complete, and accurate Form 990 returns, paying special attention to the areas noted above, and ultimately what increases may be a greater understanding of the field itself.

--Lauren Haverlock