Before the election on November 8, you were well aware that your 501(c)(3) charity could not endorse candidates for public office or otherwise intervene in any election. You carefully monitored your organization’s activities over the course of the campaign to comply with this requirement of your charity’s tax-exempt status. The election is over, and Donald Trump is president-elect. What can you do now?
Must the charity still avoid saying anything that might appear to favor or oppose a candidate or political party, even though the 2016 election is finally over?
While the prohibition against “campaign intervention” — taking actions that may help elect or defeat a candidate — cannot be ignored after Election Day, a charity need not avoid communications that address the 2016 election or mention previous candidates.
Some safe things that a charity might do:
- congratulate a candidate or say thanks for all of his or her hard work;
- focus on policy issues you’d like to see a winning candidate address now that he or she has been elected to office;
- comment on the results of the past election — what happened and why (but be careful not to comment too generally on anyone who might be a future candidate — see first bullet point under Things a charity should still avoid, below);
- advocate for changes in the election process (e.g., modifying voter identification laws; modifying or abolishing the Electoral College); and
- engage with the current presidential transition team about policy issues or nominations.
Some of these activities might involve legislation, so organizations that wish to avoid lobbying should consider this possibility in advance and if necessary consult legal counsel.
Things a charity still should avoid:
- supporting or opposing a former candidate or a political party in a way that might carry forward to a future election (rather than, for instance, focusing on what a winning candidate should or shouldn’t do while in office);
- taking credit for an election result, which could suggest intended intervention in the past election that may undermine the organization’s nonpartisan status in the future; and
- indicating that the organization intends to hold the elected candidate accountable in a way that is susceptible to being interpreted as a reference to a future election.
The same federal tax rules apply to the charity the day after the election as the day before. It is just less likely that candidate intervention will occur. With the 2016 campaign completed so recently, we are no longer close in time to a pending election. Similarly, it is far less likely (although not impossible) that an individual has already been identified as a future candidate for public office or that the charity is going to refer to voting in a future election that is still years away.
Another key factor the IRS considers is whether the timing of the charity’s communication is related to an event other than an election (e.g., a legislative vote). With new terms on the horizon for Congress and state legislatures, there are countless policy and legislative matters between now and the next election that a charity might address.
In addition, a charity can begin to create a solid record now of focusing on its important issues, independent of any pending election. Building this track record can help the organization years later when it wants to continue to highlight these issues as a future election approaches.
The initial deadline for new self-declared 501(c)(4) organizations to notify the IRS of their existence was September 6. However, system outages on that day, and since, caused delays that may have prevented organizations from filing on time.
The IRS released a statement today promising to “work with you to ensure that you are not subjected to any penalties as a result of system outages. ” The IRS encourages organizations affected by the outages to contact the Service at (877) 829-5500 for assistance.
Our friends at California Association of Nonprofits have some creative tips for how nonprofits can make their voices heard on Election Day, and some resources to help. Check it out!
A charitable remainder annuity trust (“CRAT”) is a trust that pays a fixed amount to a beneficiary (typically the donor) for his/her life or a term of years, and then pays the remainder to one or more charities. The fixed amount is generally defined as a percentage of the initial value of the asset(s) contributed to the trust, and cannot be less than 5%. The donor receives a charitable contribution deduction upon formation of the CRAT, based on the present value of the expected distribution to charity. To qualify as a CRAT, the trust has to pass two tests, measured at the date of creation, related to the expected charitable interest: (1) the 10% minimum remainder requirement (which requires that the present value of the future charitable interest be at least 10% of the amount contributed to the trust), and (2) the 5% probability test (which requires that the probability that the trust will run out of funds before it terminates in favor of the charity be less than 5%). The former can be satisfied with even a relatively young beneficiary, but the latter test is very hard to satisfy with today’s low interest rates. Consequently, many trusts pass the 10% remainder test but fail the 5% probability test – for example (using an AFR of 1.8%), a CRAT paying 5% of its initial asset value will satisfy the 10% test with a beneficiary as young as 52, but won’t pass the 5% probability test unless the beneficiary is at least 73 (at which point the remainder interest is a whopping 47%, almost five times the required minimum!).
Two members of the ACTEC Charitable Planning Committee, Chip Parks and Bill Finestone, met with the IRS and proposed an alternate approach to addressing the 5% probability test: rather than measure the probability of exhaustion at the time the trust is created, add an early termination to the trust, tied to the actual value of the trust, such that the trust would terminate early if it was about to run out of assets (so it would never “exhaust”). They argued that such a provision should be considered a qualified contingency – IRC section 664(f) provides that if a trust would, but for a qualified contingency, meet the requirements for a CRAT, then the trust will not be deemed to fail by virtue of containing the qualified contingency.
Well, sometimes good things happen. The IRS just issued Rev. Proc. 2016-42, which adopts the general idea proposed by Chip and Bill. It includes sample language that can be included in a CRAT document which the IRS will respect as a qualified contingency and will not cause the trust to fail to qualify as a CRAT. If the language is included, the trust does not need to meet the 5% probability test.
A few cautions, though. First, the sample language only applies to trusts created after August 8, 2016. Second, the ruling only applies if the drafter uses the “precise language” set forth in the ruling – any deviation will not necessarily disqualify the trust, but it will not be assured of treatment as a qualified contingency. Finally, the sample language is not a straightforward calculation (as proposed by Chip and Bill), but instead a rather complicated formula. It would appear that the IRS wanted to guarantee that the charity gets the 10% minimum remainder value; this is more than the amount actually required to satisfy the 5% probability test, which only looks to whether the trust would “exhaust” before it terminates in favor of the charitable beneficiary). Still, this ruling should be a welcome development.
The IRS has finally caught up with Congress with respect to the new notice requirement for new organizations claiming exemption under Section 501(c)(4). Narrowly (?) missing its self-imposed July 1 deadline for implementing this requirement, the IRS last week released new temporary (and proposed) regulations, a Revenue Procedure (Rev. Proc. 2016-41) explaining the notification system, and an online, electronic-only form, Form 8976 (Notice of Intent to Operate Under Section 501(c)(4)) for providing the required notice (along with a $50 User Fee).
A social welfare organization’s obligations under the new rules depend on when it was (or will be) formed and whether it has already told the IRS of its claim to exemption under Section 501(c)(4):
An organization formed on or before July 8, 2016 must:
- Do nothing if the organization has either a) filed Form 1024 requesting recognition of exemption under Section 501(c)(4), or b) submitted Form 990 (any variant) claiming exemption under Section 501(c)(4), on or before July 8, 2016.
- Complete Form 8976 (including payment of the User Fee) by September 6, 2016 if the organization has neither filed Form 1024 requesting recognition of exemption under Section 501(c)(4), nor submitted Form 990 (any variant) claiming exemption under Section 501(c)(4), on or before July 8, 2016.
An organization formed after July 8, 2016 must complete Form 8976 (including payment of the User Fee) within 60 days of formation, even if the organization first submits a Form 1024 or any version of Form 990.
Providing notice under this system does not constitute an application for recognition of exemption, and the IRS’s acknowledgment of receipt of the notice does not constitute a determination that the organization is exempt.
Failure to submit Form 8976 exposes the organization to a penalty of $20/day, up to a cap of $5,000. If an organization fails to provide notice, the IRS may demand that the organization do so by a specified date, and failure to comply with such a demand can expose managers personally to the same penalties. Penalties may be subject to abatement upon proof of reasonable cause.
Watch for Changes
The IRS has requested comments on the temporary/proposed regulations and Rev. Proc. 2016-41, and there are some concerns about the application and enforcement of the new notice requirement under certain circumstances, so it is possible that the rules will change before the regulations become final. We’ll be watching for developments.
A while back, we blogged about a new notification requirement for organizations claiming exemption under Section 501(c)(4) imposed by Congress’s adoption last December of the PATH Act of 2015. The Path Act created a new section of the Internal Revenue Code, Section 506, which requires new and certain existing (see below) Section 501(c)(4) organizations to notify the IRS of their existence and claimed exempt status within 60 days of the date of formation. However, the new statute did not establish any procedures for that notification to occur. The IRS subsequently extended all of the relevant deadlines pending issuance of further guidance about the notification procedure.
You’ll be . . . pleased? . . . to know that the wait may soon be over. A well-placed source tells us that the IRS has publicly indicated, through an IRS representative’s comment at a recent meeting, its intention to roll out the new notice system on July 1.
According to what we have heard, the notification system will be online only. The IRS has previously indicated that the system will include instructions for organizations for whom the statutory deadline for notification has already passed.
Newly formed Section 501(c)(4) organizations, as well as those that have not yet either a) voluntarily applied for recognition of exemption or b) filed a Form 990 claiming exemption under Section 501(c)(4) will need to notify the IRS under the new system, so if your organization falls into one of those categories, keep an eye out for more information on July 1.
The US Department of Labor has issued new regulations, effective for most employers in December 2016, that will affect how employers, including nonprofits, determine which employees are exempt from certain wage and hour rules.
Since we’re not employment lawyers, these new rules fall outside of our areas of expertise, but our friends at California Association of Nonprofits recently released a very helpful summary that they prepared with the help of knowledgeable counsel.
Take a look, and consider consulting your own employment counsel to see what you need to do to prepare for the new rules. The CAN post also includes links for information about some upcoming webinars that might be helpful.
The Treasury Department and Internal Revenue Service yesterday released final regulations on private foundation program-related investments.
These regulations put in final form nine examples of investments that qualify as PRIs, initially proposed by the IRS in 2012.
The White House has been enthusiastic about impact investing as a tool to further social and charitable objectives, including the use of PRIs, and issued this blog post announcing the final regulations.
The nine examples in the final regulations illustrate the wide range of possible PRIs and reflect the following general principles:
- Charitable goals that may be accomplished through a PRI are broad; they include purposes such as combating environmental deterioration, promoting the arts, and advancing science.
- PRIs may fund activities both domestically and abroad.
- Many different kinds of investments may qualify as PRIs, including loans to individuals, loans to tax-exempt organizations (e.g., a 501(c)(4) social welfare organization), guaranties and other forms of credit enhancement, and equity investments in for-profit organizations.
- A potentially high rate of return does not automatically prevent an investment from qualifying as program-related.
These final regulations follow guidance issued last September by the Treasury Department and IRS (Notice 2015-62) clarifying that private foundations could consider the relationship between an investment and the foundation’s charitable purposes, even when making ordinary investments that are not PRIs, and that foundation managers are not required to select only investments that offer the highest rates of return, the lowest risks, or the greatest liquidity. (See our blog post on this topic.)
A few points from the Treasury Department and IRS written comments that accompanied the final regulations:
- Treasury and the IRS confirmed that the examples are intended as illustrations of investments that qualify as PRIs but that other fact patterns also may qualify, for instance, ones that are similar to but that do not contain all of the elements in any particular example. The examples therefore provide guidance but are not intended to be restrictive.
- Treasury and the IRS removed from the fact pattern of one example that the foundation would liquidate its stock investment if it became profitable, which is helpful to avoid a conclusion that a foundation must sell the equity it acquires in a business once it becomes profitable for the investment to qualify as a PRI. This is not a PRI requirement in the regulations. However, the comments did note that the establishment of an exit condition when making an investment that is “tied to the foundation’s exempt purpose in making the investment can be an important indication of” the foundation’s primary charitable purpose.
- We’ve previously commented that it would be helpful if we had an example of an equity PRI in an LLC (as opposed to a loan), which is a fairly common investment structure. However, we understood that the IRS viewed the complexity of such an investment to be outside the scope of these examples. The comments confirmed that this is the case, but also stated that the IRS and Treasury are considering issuing a revenue ruling addressing investments in partnership/LLC interests. We look forward to that future guidance.
Independent Sector, a leading national organization of nonprofits, will host a webinar on Tuesday, April 19, at 2:00 p.m. Eastern time (11:00 a.m. Pacific) on the topic “How 501(c)(3)s Can Engage with Candidates and Voters.”
On the panel, our own Greg Colvin will cover the basic do’s and don’ts, and describe nonpartisan ways that charities can inject their issues into campaign discussions and promote broader citizen engagement in our democracy at all levels of government.
For more information and to register for the webinar, go to https://www.independentsector.org/engagewithcandidates.
Our colleague, mentor, and friend Greg Colvin is having a significant birthday today, and we at Adler & Colvin want to wish him a very happy birthday! For more than 30 years, Greg has meant (and continues to mean) so much to our firm, shaping its vision and character. He has had a similar effect on the nonprofit sector as a whole, helping to clarify complicated issues and fighting for law reform.
Greg’s impact on our firm, our clients, and the nonprofit sector as a whole has been so broad and deep that we can’t possibly describe all of it here, but we do want to mention a few highlights:
- Aside from his client work, Greg has toiled relentlessly to bring clarity to the lobbying and political arena. He worked tirelessly to help shape and clarify the rules, set forth in IRC Section 501(h), governing lobbying by publicly-supported charities. With Greg’s help, these rules significantly expanded the practical ability of charities to engage directly in public policy, giving a greater voice to constituencies that too often are left out of policy discussions that affect them.
- Greg literally wrote the book on fiscal sponsorship. His “Fiscal Sponsorship: 6 Ways to Do it Right” is the definitive text on a tool that has dramatically lowered barriers to entry for fledgling nonprofits.
- When the Supreme Court opened the floodgates to corporate expenditures on behalf of favored political candidates with its 2010 ruling in the Citizen United case, Greg worked with members of the Senate to develop a Constitutional amendment to repeal the decision.
- Greg continues to be a leading participant in the Bright Lines Project, a collaborative movement seeking to bring clarity to the fuzzy limits on political activity by exempt organizations.
Like the Scarecrow, the Tin Man, and the Lion rolled up into one, Greg has a tremendous intellect, a huge heart, and the courage to be a leader both in our firm and in the Sector.
Happy birthday, Greg — we love you.
Adler & Colvin