AICPA  NPF08  Session 51
Public Support Tests :
Context & Calculation
[in the era of the New 990]
Terry Miller
Leventhal Kline Management, Inc.
127 University Avenue
Berkeley California 94710
www.philanthropicadvisor.org  terry@lkmi.com
terry@terrymiller.biz
Overview of Session
Context – Calculation – Alternatives & Considerations
 Overview of Session
 Definition of Public Charity
 Who cares? Why does it matter?
 Types of Public Charities
 Public Support Test formulas: New 990 – Big Changes!
 Public Support Test formula: 509(a)(1)/170(b)(1)(A)(vi)
 Public Support Test formula: 509(a)(2)
 Reporting: Common Technical Errors
 Reporting & Planning: Common Substantive Errors
 Other Tax Planning Tips & Special Topics
1
Definition of Public Charity
 501(c)(3) = Private Foundation by default
 Must pass test to Qualify as “NON-private
foundation” known as public charity (“PC”)
 Private Foundations (“PF”) generally answer to
donors: narrowly funded, narrowly controlled,
ergo, highly regulated to ensure public benefit
2
Who cares?
Why does it matter?
Answer: Rules & Regulations! PC status is often vital to objectives…
Private Foundation
Public Charity
 Obscure difficult Form 990PF
 Difficult to get grants from PFs
 Only easy grants are to PCs
 Easier Form 990 (cheaper prep)
 Possible to get PF grants
 PC may grant to any entity for
charitable work
 Lobbying: generous limits
 Insider transactions must be
reasonable
 Deductibility usually FMV
 Deductibility higher % AGI
 No minimum
 No such tax
 No prohibition; prudence only
 Lobbying prohibited
 Most insider transactions
prohibited
 Lower deductibility: valuation
 Lower deductibility: % AGI
 Minimum payout
 Tax on investments
 Prohibition on certain
investments
3
Types of Public Charities
There are nine primary types of public charity:
509(a)(1) holds six tests: 170(b)(1)(A)(i) - (vi)
1.
170(b)(1)(A)(i) – church
2.
170(b)(1)(A)(ii) – school
3.
170(b)(1)(A)(iii) – hospital or medical research organization
4.
170(b)(1)(A)(iv) – support org to public college / university
5.
170(b)(1)(A)(v) – governmental unit
6.
170(b)(1)(A)(vi) – publicly supported through gift income
7. 509(a)(2) – publicly supported through earned income
8. 509(a)(3) – by connection to an (a)(1) or (a)(2) (Types I, II, III)
9. 509(a)(4) – product safety testing
4
Public Support Tests:
New 990 – Big Changes!
 5-year measurement period; was 4-year
 Not nec. cash method: same as return; restate prior years
 Larger denominator: commercial income that escapes UBTI
as “not regularly carried on” (other exclusions OK)
 NO ADVANCE RULING PERIOD – NO FORM 8734!
 IRS issues determination based on likely support
 No % calculation during first 5 years (though do table)
 Starting in 6th year, failing test 2 consecutive years =
immediate PF status
 Self-evaluation for “facts & circumstances” qualification for
(a)(1)/170(b)(1)(A)(vi) charities
 New Part IV for certain explanations
5
Calculation:
509(a)(1) & 170(b)(1)(A)(vi) - 1/4
 Basics (formula on next slide)
 5 year measurement period
 5 year startup time – 5 fiscal year ends from formation – tax
planning – can be 49-60 months – tax planning opportunity! – no
calculation required until Year 6
 Starting in Year 6 must calculate public support %
 Goal is > 1/3 public support
 If <1/3 but >1/10, then “facts & circumstances” to differentiate from
narrow private foundation
 Sufficient support in one measurement period confers PC status
on two years (current + next)
6.1
Calculation:
509(a)(1) & 170(b)(1)(A)(vi) - 2/4
Formula Detail:
Public Support
Total Support
+ Grants from 170(b)(1)(A)(vi) charities
+ Grants from governmental agencies
+ Gifts grants & contributions - up to 2% of the denominator
from each private source (aggregate by family & business)
+ Tax revenues & government facilities furnished free that
usually cost
• All income (counting NET UBI not gross), minus:
─ Exempt function income (program svc revenue)
─ Excl from UBI oth than becuz not regularly carried on
─ Unusual grants
─ Capital gains
─ Tax paid on UBTI
6.2
Calculation:
509(a)(1) & 170(b)(1)(A)(vi) - 3/4
Formula Result:
If: public support / total support > 1/3
then: definitively public charity; but
If: < 1/3, but > 1/10,
then: look to facts & circumstances “grey area;”
If: < 1/10, for 2 consecutive periods, then: revert PF
• Facts & Circumstances:
+ Broad community-based board, not just insider donors
+ Fundraising efforts to broaden support
+ Substantial support from governmental agencies
+ Facilities or services made available to general public
6.3
Calculation:
509(a)(1) & 170(b)(1)(A)(vi) - 4/4
• Unusual Grants: generally are substantial contributions
and bequests from disinterested persons and are:
 Attracted because of the organization’s publicly
supported nature,
 Unusual and unexpected because of the amount, and
 Large enough to endanger the organization’s status as
normally meeting the 1/3 public support test.
A grant that meets these requirements may be treated as
an unusual grant even if the organization receives the
funds over a period of years.
6.4
Calculation: 509(a)(2)
 Basics are similar to (a)(1)
- 1/3
(formula on next slide)
 5 year measurement period
 5 year startup time – 5 fiscal year ends from formation –
can be 49-60 months – no calculation required until Yr 6
 Starting in Year 6 must calculate public support %
 Goal is > 1/3 public support
 Sufficient support in one measurement period confers PC
status on two years (current + next)
 (Investment Income + After Tax UBI) must be < 1/3
 NO facts & circumstances alternative!
7.1
Calculation: 509 (a)(2)
- 2/3
Formula Detail:
Public Support
+ Fees: exempt function income from entities that are NOT
disqualified persons, up to the GREATER of $5,000 or 1%
of Total Support – in a given SINGLE YEAR (not 5)
+ Grants from 509(a)(1) public charities
+ Grants from Government agencies
+ Gifts from other sources NOT disqualified persons
+ Tax revenues & government facilities furnished free
Total Support
• All income (counting NET UBI not gross), minus:
─ Unusual grants (same definition as in (a)(1))
─ Excl from UBI oth than becuz not regularly carried on
─ Capital gains
─ Tax paid on UBTI
7.2
Calculation: 509(a)(2)
- 3/3
Formula Result:
If: public support / total support > 1/3,
AND If: (investment income + after tax UBI) < 1/3
then: definitively public charity;
If NOT: then, revert to PF status
Disqualified Person (relatively permanent – 10 yr):
– Substantial contributors – gifts exceeding $5K or 2% of
total gift income over entire organization history
– Owner of >20% of a substantial contributor
– Foundation mgr (of the charity) – ofcr, dir, key employee
– Family members of other disqualified persons
– Certain related entities
7.3
Common Technical Errors
 Wrong periods reported
 Wrong accounting method (was cash method required)
 now same method as return; restate prior years
 Confusion about which entities subject to 2% limitation
 lack of family aggregation
 treatment of public entities as subject to 2% limit
 treatment of PFs as NOT subject to 2% limit
 guessing
 Wrong status box checked [(a)(2) description reads more
accessibly – lay or bad research error]
8
Reporting & Planning:
Common Substantive Errors
 Confusing fees v. donations
 especially government awards
 also special events – earned v. donated portion
 membership dues – typically donative NOT earned for
a (c)(3)
 “Other Income” is drag on public support – could often be
netted against expense
 Fear of “facts & circumstances” – inexperienced preparers
consider (a)(1) <1/3 to be failure and recommend 990-PF
 Confusion about initial funding from fiscal sponsor or
parent in spinoff (usually NOT subject to 2%)
 Confusion about definition of “unusual grants”
9
Other Tax Planning Tips
& Special Topics
- 1/4
STRATEGY TIPS - 1:
 Scope is Everything – do quick test first – if at ~60% don’t
sweat the details; if at 34% then DO sweat the details
 Three alternatives to consider if approaching failure:
1. Supporting Organization 509(a)(3)




tax planning / strategic advantages in some cases
loss of control (even more since PPA)
increasing scrutiny, especially Type III and maybe Type II
legal advice needed – not a D.I.Y. project
2. Private Operating Foundation (“POF”)
 narrowly supported, broadly operated
 still many PF constraints, but offers PC level deductibility
 complex tests (3 options), each with two parts & many nuances
3. Advisory Committee to a Sponsored Project
10.1
Other Tax Planning Tips
& Special Topics
- 2/4
STRATEGY TIPS – 2:
 Publicly supported (a)(1) is MUCH BETTER than (a)(2) due
to flexibility; switching does not require permission
 For an (a)(1), do a check at ~3.5 years, in case facts &
circumstances will be important; gives time to act
 Choose formation date to get longest first five “years” (e.g.
incorporate just AFTER FYE, not just before)
 Capital Gains don’t count in the denominator of (a)(1)
charities; if tight, manage investments to generate gains not
interest & dividends (including distributed LT Gains)
 How much % of income from fees is too much to pass (a)(1)
test? Current regs say only that 100/1 is too much.
Experts? 90/1 maybe 95/1
10.2
Other Tax Planning Tips
& Special Topics
- 3/4
PLANNING:
 Funds from subsidiary for-profits and from (a)(3) supporting
organizations are treated unfavorably, as disqualified
persons (subject to 2% limit for (a)(1) and not public support
for (a)(2) )
 PFs may convert to PCs by filing for a “private foundation
termination” [IRC §507(b)(1)(B)]. (Not clear how this will
change with no more advance ruling period.)
 Switching publicly supported (a)(1) to (a)(2) (or back) is just
about checking the box
 Publicly supported (a)(1) & (2)’s may convert to (a)(3)’s at
least going forward if not retroactive – requires planning
ahead and governance changes.
10.3
Other Tax Planning Tips
& Special Topics
- 4/4
SPECIAL TOPICS:
 Words: how to technically describe? (501(c)(3) v. 509(a)(1)
confusion) Say “a 501(c)(3) charity which is” “a publicly supported
509(a)(1) charity” or “a 509(a)(1) and 170(b)(1)(A)(vi) public
charity”. Won’t matter to anyone but PFs.
 Words: “total support” is a misnomer because it includes some
revenue – “support” v. “revenue” is sadly ignored too often
 “Failure” is not fatal. PF’s are still tax-deductible 501(c)(3) charities
which can pay insiders for working. No grants income, no lobbying,
no other payments to insiders, some tax, but no public support test
to fool with.
 Failing the test in the 6th year will not ordinarily jeopardize
deductions, but will subject charity to investment income tax (only
2%) – other PF constraints apply only going forward.
10.4