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February 2018 (3 posts)

IRS Warns Donor-Advised Funds May Face New Restrictions
February 28, 2018

Lauren Haverlock, CPA, 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.

Lauren Haverlock - 150

In recent years, donor-advised funds (DAFs) have gained popularity as a philanthropic tool. The National Philanthropic Trust reports that in 2016, charitable assets under management in DAFs exceeded $85 billion—representing a record amount.

DAFs offer donors a flexible giving option when they want a charitable deduction with administrative simplicity, a long-term distribution of funds, and less transparency than is common with private foundation grants.

But the IRS has indicated that organizations and individuals may be taking advantage of DAFs. Because of this, the IRS has provided a notice warning of tightening its restrictions on the funds.

Background

A DAF is a separately-identified and managed account that’s operated by a section 501(c)(3) public charity—a sponsoring organization—on the original donor’s behalf.

Once a donor contributes to a DAF, the sponsoring organization has legal control over the use and reporting of the funds. The organization then invests the funds until the donor advises they be distributed. Donors often need to follow specific guidelines when advising about fund distribution, but a sponsoring organization has ultimate control.

DAFs and Private Foundations

Private foundations also use DAFs in a variety of ways. Many uses clearly relate to charitable planning, but some are less transparent—including the following:

  • Using a DAF that exists within a community foundation to support the foundation’s initiatives
  • Granting DAFs to another community foundation that offers grant support services for which the foundation doesn’t have its own internal structure
  • Using DAFs to obscure charitable giving. Since the Form 990-PF is public, a grant to a DAF would show up as such on the 990-PF while obscuring the DAF’s recipient
  • Giving funds to a nonqualified recipient. A foundation can bypass giving restrictions—and the additional steps necessary for validating using their grants—by providing a donor-advised fund instead
  • Employing DAFs to help meet minimum distribution requirements—or avoid complex set-aside rules—when it might otherwise fall short

Next Steps from the IRS

In Notice 2017-73, issued in December 2017, the IRS and Treasury Department are considering regulations addressing perceived abuses of DAFs, including some of the above issues. The notice limits the following areas:

Prohibiting Donor Sponsorship or Membership Benefits. The notice prohibits distribution from DAFs that subsidize the donor’s participation in a charity-sponsored event or membership in a charity. This is because the benefit is more than incidental. DAF donors or advisors can only receive an incidental benefit from DAF distributions.

If the prohibited distribution occurs, the donor would be taxed 125%. The fund manager who permitted the transaction would be taxed 10%.

Giving Relief when Distributions Apply to DAF Donors’ Pledges. A charity may use DAF distribution funds to relieve a pledge obligation from the DAF’s donor because the DAF doesn’t provide the donor with a benefit that’s more than incidental.

The guidance provides an example of a benefit that’s incidental and permissible. This rule stems from the difficulty of assessing if the outstanding pledge existed before the donor granted the DAF. To be permissible, a benefit must meet the following criteria:

  • The recipient didn’t reference the pledge when making the DAF distribution
  • The donor didn’t receive additional benefits from the distribution
  • The donor didn’t take charitable contribution deduction, even if the grantee sent them an acknowledgement 

Circumventing Public Support. Donors may no longer be able to use a DAF to anonymize their contribution to a public charity. The notice indicates that the IRS may treat a distribution from a DAF as an indirect contribution from the donor—or donors—that funded the DAF.

If a public charity funds another public charity, the income is considered unlimited public support. If the IRS then treats the DAF as a donation from the original donor, public support could be limited—which could reclassify the charity as a private foundation.

The charity would also face additional donation tracking requirements based on the original DAF donor, and may need to disclose the donor on the Form 990’s Schedule B.

Provide Your Input

The IRS has requested comments on how foundations use DAFs. Comments and data pulled from Form 990-PF reporting could determine the IRS’s future actions in the area.

Specifically, the IRS wants to know:

  • How private foundations use DAFs in support of their charitable purpose
  • Whether a private foundation’s transfer of funds to a DAF should only be treated as a qualifying distribution if the DAF-sponsoring organization agrees to distribute the funds for charitable purposes—or to transfer the funds to its general fund—within a certain timeframe.

Comments may be submitted by March 5, 2018, to notice.comments@irscounsel.treas.gov, or to the following address:

Internal Revenue Service

CC:PA:LPD:PR (Notice 2017-73) Room 5203

P.O. Box 7604, Ben Franklin Station

Washington, DC 20044

Please include “Notice 2017-73” in the subject line. Comments will be available for public inspection and copying.

The Future of DAFs

We expect the popularity of DAFs will continue to grow—especially as the tax landscape evolves. DAFs continue to be a great philanthropic tool for individuals and foundations, so restricting their use could have a wide impact. If you have strong opinions on the matter, now’s the time to let the IRS know.

--Lauren Haverlock, CPA

Open for Transformational Change: How Foundation Transparency Sets the Stage for Diversity, Equity, Inclusion, and Justice
February 14, 2018

Whitney Tome is the executive director of Green 2.0, a campaign dedicated to increasing the racial diversity of mainstream environmental NGOs, foundations and federal government agencies through data transparency, accountability, and increased resources.

Whitney Tome photoPhilanthropy invests billions of dollars into charitable causes each year. According to Foundation Center, foundations gave an estimated $59.28 billion in 2016. That’s a tremendous amount of capital. For better or worse, the field of philanthropy is a leader in determining what’s important and how social change happens. Whoever holds the purse also holds the power. And with power comes responsibility for foundations to set the gold standard, especially for diversity, equity, inclusion, and justice (DEIJ).

In my role as executive director of Green 2.0, I spend a lot of time helping foundations better understand how improved foundation transparency around DEIJ can position philanthropy to lead by example instead of just playing catch up, or worse, just going through the motions. Though we focus on the environmental field, what we have learned in the process can serve as a helpful example for all of philanthropy because every sector has been influenced by the power and privilege that exist in our society.

“Being transparent about the demographics of foundation staff and boards…can spur a review of recruitment and hiring process to reduce implicit biases.”

So what have we learned?  The environmental movement, in particular, has failed to adequately represent people of color. In 2014, Green 2.0 commissioned “The State of Diversity in Environmental Organizations” report authored by Dr. Dorceta Taylor, which found that while people of color are 36% of the U.S. population, they only comprise 12% of foundation staff in the world of environmental funding. And ample studies have shown that communities of color are disproportionately affected by environmental hazards. Green 2.0 envisions a different, more diverse movement that wins environmental battles for those most impacted. To catalyze transformational change, Green 2.0 works to increase the racial and ethnic diversity in the mainstream environmental movement. We call for data transparency, accountability, and increased resources to ensure NGOs and foundations are diverse.

As the sustained drumbeat to improve workplaces and increase opportunities for talented people of color, Green 2.0 engages with environmental NGOs and foundations by calling on them to share their demographic data year after year. This is not just transparency for transparency’s sake. We find there are direct benefits to this kind of transparency that spurs change for the better as outlined below. But there is still lots of room for improvement.

Since 2014, only 12 of the Top 40 environmental foundations have answered the call. Given the benefits of transparency to the DEIJ movement, it is important that both GuideStar and Glasspockets encourage disclosures pertaining to diversity data in their respective profiles. In the case of Glasspockets, the transparency self-assessment covers disclosures about both diversity values statements and demographic data, and what we have learned here is it remains a challenge for the field as a whole with fewer than half of participating foundations reporting any kind of values statement, and fewer than 10 percent disclosing any demographic data at all.  And out of a universe of more than 86,000 foundations, only 500 foundations have willingly submitted their demographic data to GuideStar via their profile page demonstrating that this is a challenge for all foundations. 

Commitment means:

  • Being transparent about the demographics of foundation staff and boards. Greater transparency can spur a review of recruitment and hiring process to reduce implicit biases but also allow foundations to identify the full range of organizations they should be supporting.
  • Encouraging grantees to submit their diversity data and communicate how they are working on diversity, equity, inclusion, and justice both internally and externally. As funders, foundations are uniquely suited to holding grantees accountable for advancing a more diverse environmental movement.
  • Recognizing your role as leaders in the field that influence the whole. When foundations make a move and engage deeply on issues, others follow suit. Foundations have an opportunity and responsibility to show the field the value of diversity through its action and set the standard on recruiting, attracting, and retaining talented people of color.

In order to see transformational change, foundations need to make a real commitment to diversity, equity, inclusion, and justice, internally. That’s more than providing lip service to the value of diversity. It is rather embedding equity and justice in the practices, policies and procedures of the organization and for foundations also into their grantmaking. Ask your foundation simple questions that may result in complex but informative answers as a start:

  • Are you tracking the data of your staff and board?
  • Do you have an organizational vision and/or mission around diversity, equity, inclusion, and justice?
  • Is there authentic leadership on DEIJ issues and are they holding the organization and themselves accountable for change?
  • Are your internal policies for attracting, recruiting, hiring, promoting and retaining staff transparent, equitable and consistently implemented?
  • Are you assessing your organizational culture and making constant adjustments to achieve your vision?
  • Are you tracking the demographic makeup of your grantees? Are you sharing those statistics with program officers? Are you using this to inform future grantmaking?

Several foundations have made or are starting to ask these questions, but many are not public about them.  From sharing the demographic data of their grantees to intentional recruiting and hiring staff of color, these foundations are changing their focus and what they fund. One foundation has been collecting the demographic data of their staff and grantees for several years; and sharing that data with grantees and program officers. This data gives program officers insight into where the dollars are going, how to shift their portfolio over time, and for their grantees they can now compare themselves to other organizations in the field. As a foundation, they have engaged in more DEIJ conversations internally and externally from how they support racial equity through funding to how they support the internal DEIJ work of grantees. This has spurred important conversation and reflection about funding, commitment, and action that this foundation is digging into and learning from every year. More need to start this conversation and be public about the answers that they are coming to.

Green 2.0 will continue to advance enduring change in the environmental movement broadly but we call on foundations to dedicate the time and resources needed to change the face of philanthropy to one that is more diverse, equitable, inclusive, and just.

--Whitney Tome

Upcoming Webinar - Going Public: Overcoming the Foundation Transparency Challenge
February 7, 2018

Learn how greater transparency practices can improve foundation effectiveness. Foundation Center is teaming up with United Philanthropy Forum to offer a webinar on February 22nd that will share strategies and tools for creating greater openness at your foundation.

Foundation Center’s Janet Camarena, Director of Transparency Initiatives, will explain how greater transparency sets the stage for more effective foundation practices and grantmaking. She will highlight powerful and free tools that grantmakers can use to assess and improve transparency practices. Attendees will also explore how to design a foundation website with transparency and openness in mind. Learn from helpful peer examples that illuminate best practices on the road to greater transparency and accountability in philanthropy.

Don't miss out on this helpful webinar! February 22, 2-3pm EST

Register Now

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About Transparency Talk

  • Transparency Talk, the Glasspockets blog, is a platform for candid and constructive conversation about foundation transparency and accountability. In this space, Foundation Center highlights strategies, findings, and best practices on the web and in foundations–illuminating the importance of having "glass pockets."

    The views expressed in this blog do not necessarily reflect the views of the Foundation Center.

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