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5% Distribution Requirement for Private Foundations 

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5% Distribution Requirement for Private Foundations 

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Private foundations in the United States are legally required to distribute at least 5% of their assets each year for charitable purposes to maintain their tax-exempt status. This requirement is outlined in the Internal Revenue Code (IRC) Section 4942.

The primary reason for this rule is to ensure that private foundations, which are tax-exempt organizations, fulfill their charitable mission and do not hoard their assets indefinitely for the benefit of a few individuals or a select group. By requiring foundations to distribute a minimum percentage of their assets each year, the government aims to promote philanthropic activity and prevent the abuse of tax-exempt status for personal or non-charitable purposes.

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IRC Section 4942, Taxes on Failure to Distribute Income - Carryover of Excess Distributions or Undistributed Income | Internal Revenue Service

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Issue Title: IRC Section 4942, Taxes on Failure to Distribute Income - Carryover of Excess Distributions or Undistributed Income Description: Adjustments can be made on years closed by the period of limitations by recalculating the distributable amount and the amount of qualifying distributions in order to determine the correct excess or deficient distributions carryovers and the correct Section 4942 excise tax for years open by the period of limitations on assessment.

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The Office of the Attorney General has the duty to protect the interests of all beneficiaries of charities within its jurisdiction. As such, the Consumer and Environmental Protection Division oversees charitable organizations (501(c)(3)s and organizations that identify themselves to the public as having a charitable purpose; except for religious and educational organizations, as defined in the Charitable Solicitations Act that exist, operate or solicit contributions in our state.

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Fifty years ago, there was no rule regarding grant payments from private foundations. In 1969, lawmakers sought to close this perceived loophole by passing the Tax Reform Act, which imposed the first-ever minimum distribution rule for private foundations. The first iteration was imperfect and difficult to calculate, so in 1976, lawmakers created the “five percent rule” that exists to this day.

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1. Rebalancing Investment Portfolio:

Private foundations should regularly rebalance their investment portfolios to maintain their desired mix of assets. Since the tax on investment income is just 1.39%, the cost of rebalancing is generally low.

2. Ensure Books and Records are Current

Private foundations are required to maintain accurate and up-to-date books and records. However, some foundations without a dedicated bookkeeper may struggle to keep their records current. In such cases, outsourcing accounting to a third-party service provider is a common and straightforward solution.

3. Ensure that the minimum distribution requirement is fulfilled through "qualifying distributions". These primarily consist of grants given to public charities and any expense incurred to carry out the foundation's charitable mission. Operating expenses, such as payroll and office expenses, generally contribute towards meeting this requirement. Other qualifying distributions include expenditures on directly operated charitable programs, the purchase of assets as charitable use assets, and the acquisition of program-related investments. Private foundations that fail to meet the annual distribution requirement are subject to a punitive excise tax.

https://www.cpakpa.com/news-articles/2022-tax-planning-guide-for-private-foundations

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The CPA KPA 2022 Tax Planning Guide for Private Foundations provides valuable information and planning tips to help navigate complex tax and compliance issues. This discussion specifically focuses on private non-operating foundations, also known as grantmaking or family foundations. Here are some important considerations for year-end compliance and annual assessments:
Meeting the 5% Minimum Distribution Requirement:
Private foundations must distribute around 5% of their assets annually for charitable purposes, known colloquially as the 5% rule. The minimum distribution amount is calculated on Form 990-PF, the annual tax return for private foundations. To verify the distribution amount for 2022, refer to Line 6f, Column d in Part XII (Undistributed Income) of the foundation's 2021 Form 990-PF.

The minimum distribution requirement is fulfilled through " qualifying distributions". These primarily consist of grants given to public charities but also include any expense incurred to carry out the foundation's charitable mission. Operating expenses, such as payroll and office expenses, generally contribute towards meeting this requirement. Other qualifying distributions include expenditures on directly operated charitable programs, the purchase of assets as charitable use assets, and the acquisition of program-related investments. Private foundations that fail to meet the annual distribution requirement are subject to a punitive excise tax.

All qualifying distributions are governed by the cash basis method of accounting even if the foundation typically uses the accrual method. This is especially important for grant checks issued near the end of the year. If a grant check is mailed in time to be collected and postmarked by December 31, it counts as a charitable disbursement for that year, regardless of when the recipient deposits the check. It's important to note that backdating a check doesn't make it count for the previous year; the date of mailing determines its eligibility. Under the accrual method, an expense can be recognized when the promise to pay has been made, such as when the board approves a grant to a public charity. While books kept under the accrual method would recognize this as an expense when the promise is made, it would not count as a qualifying distribution unless the check is mailed out by December 31st.

Private foundations can also fulfill the minimum distribution requirement by issuing grants in the form of publicly traded securities. By donating highly appreciated public securities, foundations can avoid paying taxes on a security's appreciation and still receive credit for a qualifying distribution based on its fair market value. Many large public charities readily accept donations of publicly traded securities. This strategy is particularly useful when the foundation has received a highly appreciated public security as a donation (remember that private foundations assume the donor's cost basis for donated property). The foundation can simply grant the appreciated security to a public charity, bypassing the unfavorable tax consequences of selling the security.
Verification of Estimated Tax Payments:
Private foundations generally need to make estimated tax payments on their net investment income in equal installments every quarter. For calendar year foundations, the due dates for these payments are May 15, June 15, September 15, and December 15. It's important to pay attention to these deadlines because underpayment of any installment can result in penalties, even if the total estimated tax payments for the year are sufficient. However, if a foundation's total tax liability for the year is less than $500, no estimated tax payments are required.

Private foundations have several methods available to ensure they pay enough estimated tax throughout the year to avoid penalties. The most common approach is the safe-harbor method, which provides a reliable way to calculate estimated tax payments. Under to the safe harbor rule, foundations can escape penalties by making estimated tax payments equivalent to 100% of their previous year's net investment income tax. However, there are some exceptions to using the safe-harbor method. If the foundation's prior tax year was less than 12 months long or if no tax was owed on the previous year's return, they cannot use this method. In such cases, the foundation should explore other methods, such as ratably paying 100% of the current year's net investment income tax, to ensure accurate and timely estimated tax payments.

It is important to note that private foundations must make all estimated tax payments electronically using the Electronic Federal Tax Payment System ( EFTPS). EFTPS, a secure payment service provided by the U.S. Treasury that allows for online transactions with the federal government. It's worth noting that the IRS does not accept physical checks from private foundations for estimated tax payments; instead, they must be made online through EFTPS.
Excise Tax on Net Investment Income
Private foundations pay a flat rate tax of 1.39% on their net investment income. Net investment income includes interest, dividends, net capital gains (if positive), rents, and royalties, minus any allowable investment expenses. All types of investment income are taxed at this same flat rate, except for income subject to unrelated business income tax (UBIT) provisions, which is taxed at the general corporate rate of 21%.
Allowable Deductions Against Investment Income
Private foundations can deduct all ordinary and necessary expenses related to their investments, such as advisory fees paid to portfolio managers and other direct investment costs. However, if an expense is deducted against investment income, it cannot also be used as an exempt charitable expense to meet the 5% minimum distribution requirement.

Sometimes, certain expenses serve both investment and exempt charitable purposes. In such cases, the foundation should use a reasonable method to allocate these expenses between the two activities. Common expenses that may require allocation include legal and accounting fees and compensation for foundation officers. The portion of expenses allocated to investment activities can be claimed as an investment expense deduction, while the portion allocated to exempt charitable purposes helps fulfill the annual 5% distribution requirement. It's crucial for private foundations to maintain well-organized accounting procedures to track expenses related to investment income and exempt charitable activities, as well as those that require allocation.
Capital Gains and Losses
Net capital gains for private foundations are taxed at the regular net investment income tax rate of 1.39%, without any special tax rate. Capital losses can be used to offset capital gains, but they cannot be deducted against other net investment income like dividends and interest, nor carried forward to future years. To optimize their tax position, foundations should aim to time the realization of capital losses with the realization of capital gains, allowing the losses to offset the gains effectively.

Before the year-end, private foundations should review their investment portfolios to decide if any capital sales should be made. If the foundation has excess realized capital losses, it may be beneficial to sell a security with a gain to absorb the losses. The cash from the sale can then be used to repurchase the same security, resetting the tax basis at a higher level (this reduces potential future gains). On the other hand, if the foundation has excess capital gains, capital loss harvesting can be done to offset the gains.

It is worthwhile to note that private foundations are subject to the wash sale rules. A wash sale occurs when a security is sold at a loss and a substantially identical security is acquired within 30 days before or 30 days after the sale date. With wash sales, the loss recognized from the security sale is disallowed and cannot be used to offset other capital gains. Instead, the wash sale loss will be added to the basis of the repurchased securities. Wash sales can be avoided by purchasing a replacement security that is not substantially identical or by simply waiting out the 30-day time period to buy back the security.
Unrelated Business Income Tax
Private foundations are subject to the unrelated business income tax ( UBIT). For private foundations, unrelated business income refers to the income earned by the organization from activities that are unrelated to its main charitable mission or investment activities. Such income often comes from alternative investments like hedge funds, private equity, privately-held businesses, and publicly traded partnerships. Additionally, if the foundation engages in revenue-generating activities, such as selling advertising space on its website, the income generated from those activities can also be considered unrelated business income.

For tax purposes, unrelated business income is subject to the general corporate tax rate, which stands at a flat rate of 21% for the year 2022. This means that any income derived from these unrelated activities will be taxed at this specified rate, and the foundation will need to report and pay taxes on this portion of its income separately from its charitable and investment income.
Rebalancing Investment Portfolio:
Private foundations should regularly rebalance their investment portfolios to maintain their desired mix of assets. Since the tax on investment income is just 1.39%, the cost of rebalancing is generally low. However, it's important not to make hasty decisions. A good opportunity for rebalancing often arises when foundations sell assets to meet their annual minimum distribution requirements. During this process, it's beneficial to sell holdings that have exceeded the desired asset allocation, bringing the portfolio back in line with the foundation's goals.

Portfolio reviews also provide an opportunity to ensure compliance with rules related to excess business holdings and jeopardizing investments. The excess business holding rules prevent foundations and their insiders from owning significant stakes in operating businesses, while the jeopardizing investment rules discourage reckless speculation with the foundation's investments. For more detailed information on these rules, you can refer to the following links for the excess business holding rules and the jeopardizing investment rules.
Ensure Books and Records are Current
Private foundations are required to maintain accurate and up-to-date books and records. However, some foundations without a dedicated bookkeeper may struggle to keep their records current. In such cases, outsourcing accounting to a third-party service provider is a common and straightforward solution.

For foundations managing their own accounting, it's important to regularly reconcile the cash balance in their books with the monthly bank statements. Additionally, before the end of the year, the person responsible for the books should review if any checks, expenses, or other transactions were missed or haven't been cleared.

When recording expenses, the foundation's accounting system should clearly indicate which are related to investment income and which are for charitable activities. Moreover, expenses should be distinguished between general grantmaking purposes and those associated with running specific charitable programs. In cases where expenses pertain to both grantmaking and directly operated charitable programs, a reasonable method should be used to allocate the expenses appropriately.
Donation Acknowledgement Letters
When a private foundation receives a donation of $250 or more, it must send a written acknowledgement to the donor. As a good year-end practice, the foundation should check and confirm that all the necessary donation acknowledgment letters have been correctly issued. Please see the following link, donation acknowledgment requirements, for a more in-depth discussion of the required procedures.
Substantial Contributor Tracking
Private foundations must track substantial contributors, who are generally individuals contributing more than $5,000 to the foundation, with the contribution amount exceeding 2% of the foundation's total lifetime contributions received. When new substantial contributors emerge, the foundation should report them on its annual tax return (Form 990-PF). To manage this, the foundation needs a system to monitor all contributions received over its lifetime and specifically track potential substantial contributors separately.
Payroll Compliance
Private foundations with paid staff must follow all payroll laws and regulations, just like other for-profit and non-profit employers. Payroll processing companies can be very helpful in ensuring compliance, offering end-to-end assistance. However, private foundations remain responsible for ensuring proper adherence to the rules. They should verify that the following items are handled correctly:

* FICA taxes (Social Security and Medicare)

* Federal, state and local income tax withholding

* Unemployment insurance (FUTA + state unemployment insurance)

* Worker's compensation insurance
Independent Contractor Payment Compliance
Private foundations need to report payments of $600 or more to non-corporate consultants and independent contractors, such as law firms, accounting firms, directors, or trustees. These payments should be reported on form 1099-NEC by January 31 of the following year. It's important to remember that payments made to incorporated businesses do not require reporting.

Figuring out when to file form 1099-NEC can be complex, but there are many online resources available to help. The rules that apply to other for-profit and non-profit entities generally apply to private foundations as well.

If a foundation issues only a few forms 1099-NEC, the easiest way to file is through postal mail using the IRS-provided PDF form with instructions. When filing Form 1099-NEC, the foundation must also file Form 1096, Annual Summary and Transmittal of US Information Returns. Alternatively, the foundation has the option to file electronically through the Filing Information Returns Electronically (FIRE) system, provided by the IRS. However, this approach requires setting up a special account, which can be somewhat cumbersome. Another convenient option for the foundation is to engage a company specializing in tax filings to handle the submission of these forms on their behalf. This outsourcing can save time and effort for the foundation, leaving the task in the hands of professionals experienced in tax compliance matters.
Seeking expert guidance? We're here to help!
At CPA KPA, we're passionate about magnifying the positive impact of family foundations. Feel free to reach out to us anytime at 888-402-1780 for a complimentary and obligation-free conversation. You can also conveniently submit your questions and inquiries through our contact page. Let's connect today and explore how we can help your foundation have a lasting and meaningful impact!

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2022 Tax Planning Guide for Private Foundations

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The CPA KPA 2022 Tax Planning Guide for Private Foundations provides information and planning tips to help navigate complex tax and compliance issues. From meeting the 5% Minimum Distribution Requirement to ensuring proper payroll and independent contractor payment compliance, we help demystify the complicated rules that govern private foundations.

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As the Executive Director of a private foundation, I must ensure that the foundation operates in compliance with applicable laws and regulations. I am responsible for understanding and ensuring compliance with federal, state, and local laws that govern private foundations. I must work to maintain the foundation's tax-exempt status and adhere to regulations regarding reporting, disclosure, and the distribution of funds for charitable purposes.

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PY Foundation's Executive Director and CFO keep track of all charitable contributions. The CFO calculates total assets on a monthly basis to come up with a number that must be distributed. Our policy is to give more than 5% annually to ensure we are in compliance. Currently, because of our carry-over amounts we are in compliance until the year 2025.

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If a private foundation does not make sufficient qualifying distributions to distribute the entire minimum investment return for the year, the undistributed amount carries forward to the following year. The private foundation must then make sufficient qualifying distributions to cover the undistributed amount from the prior year, or a 30 percent excise tax will be imposed on the amount that remains undistributed as of the first day of the third taxable year after the amount was required to be distributed. The excise tax will continue to apply each year until qualifying distributions are sufficient to offset the undistributed amount subject to the excise tax.

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Private Foundations: Complying with Qualifying Distribution Rules

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A private foundation is an organization that is exempt under IRC § 501(c) (3), but does not meet the requirements to be considered a public charity. This

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1. All Foundations must file an annual tax return, known as a Form 990-PF.

2. State reporting - Foundations must file state reports. PY Foundation files reports and audit information to the New Mexico Attorney General.

3. Private foundations must make annual distributions of at least 5% of their net assets from the prior year. This requirement aims to prevent foundations from accumulating assets without utilizing them for charitable purposes.

4. Hold annual board meetings - Holding an annual meeting of the board of directors typically is required for private foundations that are structured as corporations. For private foundations structured as trusts, an annual meeting of the trustees is strongly recommended. This formal gathering provides structure and formality, and it gives the stakeholders an opportunity to discuss expenses, administration, grant-making, and investment strategies.

5. Private foundations must ensure that their contributions are qualified distributions.

6. Private foundation staff must do their due-diligence regarding grantees.

https://www.wiggin.com/publication/5-key-annual-requirements-for-private-foundations/

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The ethical principle behind the 5% rule is to promote transparency, accountability, and a genuine commitment to charitable activities by private foundations, thereby ensuring they actively contribute to the public welfare.

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IRC Section 4942 - Qualified Distribution 

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IRC Section 4942 - Qualified Distribution 

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qualifying distribution is:

1. Any amount (including program-related investments) paid to accomplish religious, charitable, scientific, literary, or other public purposes. Qualifying distributions do not include contributions to organizations controlled by the contributing foundation or by one or more disqualified persons with respect to the foundation or to private nonoperating foundations (except for certain contributions to exempt organizations).

2. Any amount paid to buy an asset used (or held for use) directly to carry out a charitable or other public purpose. Depreciation on these assets is not a qualifying distribution, however.

3. Any qualifying amount set aside.

In general, a distribution to a public charity described in section 509(a)(1), (2), or (3) to accomplish a religious, charitable, scientific, literary, educational, or other permitted public purpose is a qualifying distribution.

The amount of a qualifying distribution of property is the fair market value of the property on the date it is made. The amount of a qualifying distribution is determined only under the cash receipts and disbursements method.

A private foundation that bought an asset and claimed a qualifying distribution under paragraph (2) will be allowed a second qualifying distribution for the same asset if the asset is later given to a publicly supported charitable organization that is not controlled by the foundation, and it is donated for a religious, charitable, scientific, literary, educational, or other permitted public purpose.

The amount of the second qualifying distribution will be the difference between the fair market value of the asset on the date of the contribution and the amount of the first qualifying distribution.

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IRC Section 4942, Taxes on Failure to Distribute Income - Carryover of Excess Distributions or Undistributed Income

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IRC Section 4942, Taxes on Failure to Distribute Income - Carryover of Excess Distributions or Undistributed Income

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Court Case:

In H. Fort Flowers Foundation, Inc. v. Commissioner, 72 T.C. 399 (T.C. 1979), the Tax Court rejected the taxpayer's classification of a transaction that occurred in a closed year, thereby allowing the imposition of the Section 4942 excise tax in open years.

Background:

IRC Section 4942, Taxes on Failure to Distribute Income, was added to the Internal Revenue Code by the Tax Reform Act of 1969. Generally, IRC Section 4942 imposes a tax on certain private foundations if they have “undistributed income,” which is defined by Section 4942(c) as the foundation’s “distributable amount” for the taxable year less “qualifying distributions” attributable to that year. The “distributable amount” equals the foundation’s “minimum investment return” reduced by the Section 4940 tax and any unrelated business income tax imposed on the foundation. IRC Section 4942(d). In general, a “qualifying distribution” is any amount paid to accomplish a proper charitable purpose or any amount paid to acquire an asset to be used in carrying out such purpose.  IRC Section 4942(g)(1).

An excess qualifying distribution is the amount by which the total qualifying distributions exceed the minimum amount required to be distributed for any tax year.

Undistributed income is the minimum amount required to be distributed for any tax year that exceeds the qualifying distributions allocated to such a year.

Please see Private Foundations - Excess Qualifying Distributions and Private Foundations - Tax on Private Foundation - Failure to Distribute Income: "Distributable Amount" for more information.

https://www.irs.gov/government-entities/irc-section-4942-taxes-on-failure-to-distribute-income-carryover-of-excess-distributions-or-undistributed-income