1. IRS “SPECIAL” RULES & REGS; CASE COUNTING GUIDELINES
John Taylor
North Carolina State University

2. Session Etiquette Please turn off all cell phones.
Please keep side conversations to a minimum.
If you must leave during the presentation, please do so as quietly as possible.

4. Topics/Agenda Background on IRS Regulations
What’s a Quid and Does one Hurt?
DAF and Family Foundation Issues
Miscellaneous IRS Issues/Concerns
Auctions
Sponsorships
Events
Donor Control
Gift Myths
Update on CASE Counting Guidelines

5. What’s New for 2013? We Didn’t Fall Off the Cliff!
Actually, the “cliff” was simply pushed out a couple months
IRA Rollovers are BACK!
Retroactive to 1/1/2012 – through 12/31/2013
Folk who didn’t take a qualified charitable distribution (QCD) in 2012 can do so through 1/31/2013
Folk who received a required minimum distribution (RMD) in 12/2012 can transfer those to charities in 1/2013 and avoid paying tax
Is eliminating/limiting the charitable deduction off the table?
Updated “low-cost article” and “insubstantial benefit” – stay tuned for details!

7. IRS Regulations
IRS issued final and temporary regulations in 1995 to clarify(?) a clarification issued the previous year that clarified a new section of tax code
IRS final FINAL regulations issued on 12/16/96
IRS clarification of the clarified clarification of the final regulations – Revised IRS Publication 1771 (3/2002)

8. IRS Regulations
And then they revised it again 7/2005! AND AGAIN 7/2007; AND AGAIN 3/2008; AND AGAIN 6/2010; AND AGAIN 9/2011
Two primary areas of interest/concern:
Written acknowledgement requirements;
Value of Goods & Services (quid pro quo)

9. Written Acknowledgments . . .
Required for all contributions of $250 or more in order to claim a charitable deduction. Canceled checks are no longer sufficient ABOVE this amount but ARE below!
Absolutely, positively, must issue a receipt for cash donations of any amount.
Donor is responsible for obtaining.
Substantiation to donor must be contemporaneous (typically mailed by 1/31). But must be received by the day they file their taxes .

10. “Gospel” According to John?
Mail the receipt before the donor asks for one
Mail the receipt within 48 hours of receiving the gift

11. Written Acknowledgments
Written acknowledgments must provide the amount contributed (or description, not value, of non-cash property) and a statement indicating whether or not any goods or services were provided in exchange for the gift.
Neither the donor SSN nor your tax ID are required – Except for gifts of vehicles!
Payroll Deductions - Only applies to single deductions of $250 or more. Not required, period, if employer evidences the amount withheld (pay stub) and provides a “no goods or services” statement (pledge card).
No similar rules for other recurring gifts

12. What’s In A Date? A “gift date” is NOT required
“Official bank record”?
Postmarks do not always prove a gift date
Pub 1771 suggests a “received date”
John Taylor suggests a “processed” date - and had that confirmed by IRS nonprofit section head in the late 1990’s and 3 tax attorneys since

13. Where Can We Find Safe Harbors?

14. Safe Harbor Rules Quid Pro Quo receipts are not required when:
Fair market value of all benefits received in connection with the payment does not exceed the lesser of 2% of the gift amount or $102 (2013)
Gift is $51.00 or more and the cost of all token benefits given does not exceed the IRS “low-cost articles” minimum of $10.20 (2013)
For gifts below $51.00, RULE #1 APPLIES
The only benefit the donor received consisted of token items bearing the institution’s name or logo

15. Value of Goods & Services . . .
Quid Pro Quo receipt required: Gift exceeds $75 where part of the payment is for goods or services received, and part is a contribution
If payment is under $75, QPQ requirements still apply, just no mandated receipt
Disclosure must inform donor that the tax deductible amount is limited to the excess of the amount contributed over the value of goods or services provided. Must also provide donor with a good-faith estimate of the value of such goods or services

16. QPQ Specifics FMV Defined Low-Cost Defined 80/20 Rule Applications
Which comes first, the benefit or the percent reduction?
Other seating applications?
And what about membership ($75 or less) benefits?
Free or discounted admission
Free or discounted parking
Preferred access to and/or discounts on goods/services

17. Who Is the Donor Poll
Check received from the Charitable Gift Fund of the Triangle Community Foundation, indicating that we should send an acknowledgment to Jane Smith (whose family also has a separate fund at TCF). Who is the legal donor:
Jane Smith
Charitable Gift Fund
The Smith Family Foundation from whom we have previously received gifts
Triangle Community Foundation

18. Who Is the Donor? It Depends!
It actually could be the Family Foundation (no such legal entity, BTW) or the Triangle Community Foundation, but is more likely a gift from a Donor-Advised Fund (Charitable Gift Fund)

19. Donor-Advised Funds
A donor sends an asset to a qualified tax-exempt arm of an organization AS A DONATION TO THAT ENTITY
The assets are now under the name, and control, of that entity
The donor contacts the entity and ADVISES them to make a gift to a qualified nonprofit organization
The entity is the legal donor
BTW, why do donors give this way instead of directly to us?
It’s partly our fault!

20. Donor-Advised Fund Issues
Pledge Payments
No Way!!!!!!!!!
BTW, this is also true for gifts from Family (private) Foundations but for a different reason – self-dealing – more in a bit

21. Straight from the IRS:
“A charitable pledge is an obligation of the donor to give money or property to a charity at a future time. Where a charity (including a charitable organization of which a donor advised fund is treated as a component part) relieves a donor of a substantial obligation by satisfying the donor’s pledge, the charity is providing the donor with an impermissible benefit. Accordingly, a donor’s charitable pledge may not be fulfilled by a single payment or a series of payments from the charity.”
In other words – it is income to the individual!!!

22. Legal Opinion Attorney Statement Pertaining to Donor-Advised Funds:
“Gifts through donor advised funds should not be applied to satisfy pledges nor linked to a donor [other than perhaps to acknowledge a gift from a foundation at the direction of the donor]. Here are some of the reasons:
“the donor will take a deduction when the gift to the conduit foundation is made
“the donor cannot take a double deduction and therefore does not need a receipt
“if you have recorded a pledge by the donor, then while that pledge is on your records, a gift from a 3rd party [the conduit foundation] which satisfies that pledge is in effect a gift to the donor by the 3rd party [lots of cases on this] which in theory may be treated as an improper transfer by the foundation [non-profit] to the donor [non-qualified donee] and may also be treated as income to the donor
In summary, it will be very difficult to make a "safe" gift to a nonprofit through a conduit foundation to satisfy a pledge.

23. Legal Opinion
“Although I will not provide an opinion regarding this matter, it would appear that if a donor has a pledge on the books, one way to proceed might be for you to voluntarily cancel the pledge before the gift from the conduit Foundation is made [and without any legally binding agreement tying the cancellation to the Foundation gift]. This could be very risky, however, and the donor is assuming all of the risk. The only safe procedure is to make sure donors understand that a pledge may not be satisfied except by a direct gift. The conduit foundations [e.g. Fidelity, Community Foundations] were established as and intended to be the donee charity and therefore there can be no linkage.”

24. Donor-Advised Funds – And Their Donors
Do the donors know the rules?
They aren’t YOUR rules!
But do our donors really NOT know the rules?
You bet they do, or should (but might not care – and should!)

26. Community Foundation Statement

27. Private Foundations & Self-Dealing
Cannot enter into any sort of financial relationship with “disqualified persons”: officer/director/trustee/employee/donor
Lengthy list of “prohibited transactions” for these folk, which includes satisfaction of a pledge & purchases, e.g.:
Family pledges are personal debts, and if a disqualified person makes such a pledge, its an act of self-dealing for a foundation to pay that debt
If the foundation buys a ticket to a fundraising event, and the ticket price includes payment for goods and services (dinner and entertainment), the ticket cannot be used by a disqualified person

28. A Bit of This & That

29. What Is A Gift?
Gifts & Grants are synonymous (for CASE and CAE reporting purposes)
A gift is the irrevocable transfer of property or money to a qualified organization and has no donor-imposed restrictions, conditions, or control
You cannot un-gift a gift!

30. Let’s Talk About “Control”
Once a gift always a gift
Cannot give a gift back – 1099s? What if the gift was matched?
Retain gift after a restricted program is canceled
Scholarship recipient selection
Donor’s involvement
Certainly cannot have a majority vote
Control based on position/power
Cannot require institution to take action it otherwise would not take

31. Common Gift Myths
Donation of time or service. While truly a charitable act, only a volunteer’s REQUIRED out-of-pocket expenses (mileage, parking, supplies, etc.) may be deducted.
FASB/GASB may recognize as an asset
Expressly forbidden as a charitable donation per IRS Publication 526
Donated advertising space is a “service” per IRS Revenue Ruling

32. Common Gift Myths
The use of a donor’s property by a charitable organization (partial interest – IRS Pub 526)
Vacation home for charity auction
Office space in lieu of rent
One-time display of artwork (fractional gifts are the exception – and are legal!)
Use of software

33. How Will This Benefit Us?
What’s the determining factor for acceptance of a gift-in-kind?
Related use: The GIK must be useful to the institution in fulfilling the purpose or mission for which the institution was granted tax-exempt status

34. How Will This Benefit Us?
Unrelated use: May still qualify as a gift-in-kind (that you can count and the donor can deduct – sort of), provided it was given specifically to be sold (charity auction)
“the Treasury Regulations under section 170 provide that if a donor contributes tangible personal property to a charity that is put to an "unrelated use", the donor's contribution is limited to the donor's tax basis in the contributed property”
“The term "unrelated use" means a use that is unrelated to the charity's exempt purposes or function The sale of an item is considered unrelated, even if the sale raises money for the charity to use in its programs”

35. Unrelated Gifts – Charity Auctions
Not many specific IRS rules here! But what rules there are can be found at:
This is where you will find those previous quotes
Purchaser MUST “know” the FMV in advance and pay in excess
Quid pro quo receipt
Donor’s item must (?) sell – NO receipts until AFTER the auction

36. Auction Receipts Donor of item may be able to claim a deduction
Only if it is a gift (not a service or partial interest)
Only if it sells (?)
The receipt should only describe the gift
Buyer of an item may be able to claim a deduction
Only if the FMV was published or known in advance
Only if they paid more than that
Does not matter if the donated item was not a gift
Quid pro quo receipt is required

37. Sponsorships

38. Sponsorships Described
See Federal Register, Vol. 67 No. 80, page 20433
Or just go to the IRS documents section of the FundSvcs.org download site!
But if you would rather read about it in “plain English”, download the American Society of Association Executives (ASAE) interpretation of the IRS regulations, also at FundSvcs.org
All of the above pertain to “taxation” – or not – of sponsorship payments. We translate that to mean “no gift” or “gift.” If the payment could be considered taxable income, then no gift

39. Sponsorships Defined
Calling something a sponsorship does not always mean the sponsor gets something of value in exchange
Sponsorships are typically encouraged when you want to have an event underwritten
You do need to handle standard quid pro quo benefits such as receiving a “table” or a certain number of tickets to the event
Usually, all a sponsor is really looking for is name recognition

40. “Free” Recognition A Sponsor Can Receive
Mention of location, phone number, website
Value-neutral descriptions, including displays or visual depictions, of the sponsor’s product line or services
Displays of brand or trade names and product or service listings
Logos or slogans that are an established part of the sponsor’s identity
Mere display or distribution (free or at a cost) of the sponsor’s product at a sponsored activity

41. Recognition Cannot Include:
Qualitative or comparative language
Price information or other indications of savings or value (John wonders how, then, they can sell the item as suggested on the previous slide?)
An endorsement or inducement to purchase, sell, or use the sponsor’s service, facility, or product
A single message containing advertising and acknowledgement is considered 100% advertising

42. So What Is a “Good” Sponsorship?
Any payment by any person engaged in a trade or business with respect to which there is no arrangement or expectation that the person will receive any substantial return benefit

43. Sponsorship “Worry Words”
Try to keep words out of sponsorship documents that are red flags to the IRS: sponsorship agreement; partnership; joint venture; royalty agreement; advertising

46. Can Participants Claim a Deduction?
Maybe! But you need to be clear and concise in advance
Remember, it matters not if the event has been underwritten. What matters is the fair market value of what participants receive
The dreaded golf tournament? Quite likely. But entry “fee” must exceed the value of the round of golf, cart, balls, food/drink, ball towels, etc.
$1000/plate dinner? Sure. But a $25 reception? Don’t split hairs – probably best to call it a:

47. Proceeds to Benefit Event
A nonprofit conducts an event where the gift amount is negligible or difficult to determine or it is just too much work to produce receipts. Walk-a-thons and such are good examples
The FMV of benefits received equal the “price of admission,” but some or all of the event expenses are covered by a donor or group of donors. Those donors are making a gift. However, since the attendees are receiving something of equal or greater value, they are not making a gift

48. One More Type
An event hosted by a completely independent entity, with no involvement by the nonprofit, who sends any left-over cash to a charity. The organizer of such an event is making a gift for the amount sent to charity, but the attendees are not
Can that same entity claim a gift-in-kind for all of the food/beverages/preparations? Maybe, but usually only if event was originally sanctioned by the organization. If so, you need proof of what was purchased (reasonableness check), and proof of payment

49. The Old

50. The CASE Guidelines

51. Now, You Too Can Count Bequest Expectancies
Irrevocability no longer required – too difficult to manage (State laws varied), and donor-unfriendly to request
Pledged/Executed (not found) during campaign
Should consider age and variable valuation:
Under 50 - $0
50-69 – Present value
70+ - Face value
Report separately from outright and irrevocable deferred gifts

52. Back to the Future for Irrevocable Deferred Gifts
May once again count at face value (3rd edition went strictly present value)
Separate goals should be created for these as well – You can bring in more! But more here does not mean less “there”
The issue of transparency suggests that you still report the present value (IRS deduction) of these, too, but face value counts towards goal
Only the present value counts for VSE purposes
Minimum ages should be considered

53. Conditional Pledges
Reasonable expectation that the conditions will be met during the campaign. Examples include
Challenges – I’ll give you mine if you raise the other
Capital Commitments – If you build it I will pay
Appropriate documentation
Recorded as, and with, revocable gifts/commitments and thus counted separately

54. Counting Government Funds
Actually, no change – you never count government funding from any government for any reason
4th edition review committee did, however, take the issue up again
Acknowledgement that government funds are helpful in achieving strategic goals, can be leveraged to secure private gifts, and recognize that some fundraising staff help secure
However:

55. Counting Government Funds
Counting emphasis has always been on raising charitable donations from the private sector
Impossible to level the playing field when looking at large public research universities compared to small private colleges; not to mention that only half of the States offer a State matching program
Thus, securing government funds does not qualify as a private philanthropic act, however we most certainly can and should recognize its value in achieving institutional goals

56. *Applies to Campaigns AND VSE
What Doesn’t Count*
Advertising revenue
Alumni membership dues/fees
Appraisal costs and other expenses associated with conveying a gift
Contract revenues (including clinical trial funds)
Contributed services
Partial interest
Standard discounts on purchases (does not include true bargain sales)
Earned income transfer payments from money earning programs/businesses
Gifts or pledges counted before; payments on pledges or bequests made before
*Applies to Campaigns AND VSE

57. *Applies to Campaigns AND VSE
What Doesn’t Count*
Gifts to social organizations
Governmental funds – ALL kinds
Oral pledges (except telethon!)
Written-off pledges
Investment earnings on gifts – includes gains/losses on sales of stock/other property
Funds from exclusive vendor relationships: Affinity credit cards, pouring rights, royalties, or other contractual obligations
Non-gift portion of QPQ transactions
Surplus income from ticket-based operations
*Applies to Campaigns AND VSE

58. Additional Resources John’s listserv “FundSvcs”
Advancement Services Download Site
Association of Advancement Services Professionals (AASP – Advserv.org)
2007 Advancement Services book
CASE Reporting Standards & Management Guidelines - & 10/2011 Clarification
IRS Publications 526, 561, & 1771