Nonprofits The Good, The Bad, The Ugly NERC Presentation September 2014 Katherine Reilly, CMA NERC Presentation Introduction BA in English and Education M. Ed. Specializing in teaching reading Coordinated an Adult Education Program, Coordinated a program for pregnant and parenting teens and young women; Nonprofit Management Certificate from LaSalle University MBA from Temple University (Philadelphia) CMA from IMA Director of Business and Finance at nonprofits for 16 years Consultant and trainer independently for LaSalle University Nonprofit Center for 12 years Adjunct Professor in the Nonprofit Management Leadership graduate program at LaSalle University (Philadelphia) teaching Nonprofit Financial Management; consultant/trainer for nonprofits Board experience – Nonprofits involved in low-income housing, land trusts, religious schools, retirement communities, historical societies, residents’ associations. NERC Presentation Nonprofit vs For Profit Nonprofit For Profit Primary Mission Provide services, information, resources needed by society Earn profits for stockholders/owners Secondary Mission Ensure revenues exceed expenses Provide services or sell goods US Tax Status Exempt from income taxes if approved by the IRS Corporations or owners subject to income taxes NERC Presentation Nonprofit Structure Nonprofits are organized under and report to both federal and state governments. Each state has its own rules and regulations for nonprofits. In Pennsylvania and New Jersey, nonprofits do not have to be incorporated. They can be unincorporated associations but still must register their existence with the state. In Maine, a nonprofit needs to be incorporated either as a Public Benefit Corporation or a Mutual Benefit Corporation. Each state will have its own rules and regulations that apply to nonprofits. A nonprofit needs to be aware of the rules and regulations that apply in its state. Types of nonprofits under Federal Law Under the IRS code there many types of nonprofits or tax exempt organizations within Section 501 (c) such as fraternal organizations, veterans organizations, social and recreations clubs. None of these organizations pay federal income tax. A charity under federal law is one type of a exempt organization ( 501 c 3). The difference between charities and other tax exempt organizations is that donations to 501 c 3 organizations are tax exempt. Donations to other tax exempt entities are not tax exempt to the donor. 501 ( c) Organizations c-1 Corp. org. by an act of Congress c-2 Title holding corporations c-3 c-4 c-5 c-6 c-7 c-8 Religious, charitable & similar organizations (includes private foundations) - Churches do not have to apply for recognition Social Welfare Organizations Labor & Agriculture Organizations Business Leagues Social & recreation clubs Fraternal beneficiary societies A Partial Listing NERC Presentation Federal Definition There are two types of 501 (c) 3 organizations: Private Foundations and Public Charities. (Tax Reform Act 1969). The assumption is that all 501 (c) 3 organizations are private foundations unless they meet a statutory public support test (IRS Form 990 Schedule A Part II) or are covered by a specific statutory definition. Private foundations are subject to excise taxes and different rules than public charities. Besides showing broad public support (a mechanical test defined by the IRS with exemptions for churches, educational institutions, hospitals, governmental units see IRS § 509(a)(1)), a public charity must have as its purpose one of the following: charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, preventing cruelty to children or animals or it can be a “supporting organization”. Today we are focusing on public charities that are not churches or related organizations and are not supporting organizations. How to lose your 501(c)3 status 1. Private Benefit/Private Inurement • IRS revoked the exemption of a charity when it used a professional fundraiser who distributed only 3% of the funds raised to the charity • IRS revoked the exemption of a charity that had numerous transactions with an insider (could be a Board member, the Executive Director, key employee) including the purchase of a 42 foot boat for his personal use • IRS revoked the exemption of a church after it purchased for its founder five luxury cars and jewelry and clothes in excess of $30,000 per year. The founder reported none of this as personal income • Initial penalty for “private inurement” is a tax of 25% of the amount of excess benefit followed by a tax of 200% if not corrected followed by potential loss of tax exempt status • Other examples: overseas trips for “insiders” and their families paid by the nonprofit; loans to insiders that are forgiven; cars and/or boats given to insiders with no reporting to the IRS NERC Presentation How to lose your 501(c)3 status 2. Engage in political activities that support or oppose any candidate or engage in lobbying as a “substantial part of its activities”. • Nonprofits can make an election under §501(h) which defines lobbying and specifies the dollar amounts that can be used for permitted lobbying • The prohibition against participating or intervening in any political campaign on behalf of or in opposition to any candidate is absolute. • Do not endorse candidates; publish the names of candidates your organization supports; fund a candidate; distribute literature for a candidate; invite only some candidates to present their position • If the nonprofit is in violation, the organization is taxes at 10% of the expenditures and management is taxed at 2.5% if management agreed to the expenditures. If the organization does not obtain a refund, a second tax of 100% and 50% is imposed on the organization and management. If it continues the organization can lose its tax-exempt status NERC Presentation How to lose your 501(c)3 status 3. Unrelated Business Income that is a substantial part of the organization’s income – it must be a trade or business; unrelated to the organization’s exempt status; regularly carried on and “a substantial part” of the organization’s income. Unrelated Business income is permitted and is taxed but it cannot be “a substantial part” of the organization’s income. It is also taxed by states. There are many loopholes in this law – business conducted entirely by volunteers is exempt; the business is for the convenience of its students, members, patients; the business involves the selling of donated merchandise. Rentals are not unrelated business income if the property has no indebtedness (no mortgage) and rentals are only unrelated business income to extent of the indebtedness NERC Presentation Federal Definitions There are organizations that do not need to register with IRS but are assumed to be 501 C 3 organizations: Churches, interchurch organizations of local units of a church, conventions or associations of churches, or integrated auxiliaries of a church, such as a men’s or women’s organization, religious school, mission society, or youth group; any organization (other than a private foundation) normally having annual gross receipts of not more than $5,000. State Regulations States define whether a nonprofit is a “charity” separately from IRS and determine whether the organization is exempt from paying sales tax on purchases made for the organization and/or real estate tax. In most states the nonprofit needs to file for a sales tax exemption with the state. Pennsylvania has seen several court challenges to the real estate tax exemption claimed by 501 (c ) 3 organizations including a recent case (Bobov 2012) in which the State Supreme Court decided that Mesivtah Eitz Chaim of Bobov, Inc. was not an "institution of purely public charity" and, therefore, its property in Pike County (used as a summer camp) was not exempt from local real estate taxes. Mesivtah Eitz Chaim of Bobov, Inc. v. Pike County Board of Assessment Appeals, 2012 WL 1415770 (Pa) ("Bobov"). In Maine in a recent decision Hebron Academy v. Town of Hebron, 2013 ME 15 the Maine Supreme Court decided that the school’s property does indeed qualify for real estate tax exemption. The issue of exemption from real estate taxes will continue in various state courts. If a nonprofit sells items, it must collect and pay sales tax on the items it sells in accordance with the state rules on sales tax collection. Most states require nonprofits register before soliciting donations. Local Regulations Local municipalities can also have rules and regulations that impact nonprofits particularly in areas of real estate and property but they can also have local wage taxes that must be paid, building regulations that must be adhered to, historical designations that must be complied with. NERC Presentation Other Regulations that apply to nonprofits • Form 990 – An annual information report that must be filed with the IRS by nonprofits • Form 5500 – A form that nonprofits must file with the Department of Labor annually if the organization provides a pension benefit plan or IRA. • Payroll taxes – Form 941 – Must be filed with IRS along with payroll taxes withheld and paid by the employer • Fair Labor Standards Act – Requires overtime payment for non-exempt employees and sets the federal minimum wages– applies to nonprofits as well as for profits. • Affordable Care Act – Applies to nonprofits as well as for profits • Nondiscrimination Laws- EEOC, State and local except for religious nonprofits Accounting for Nonprofits • Financial records can be accrual based, cash based or modified accrual • Audits generally require accrual based accounting • Nonprofits can have audits, reviews or compilations depending on their revenue and assets and sources of funding • Nonprofits need to have more revenue than expenses • Nonprofits can have large unrestricted reserves • Nonprofits must comply with federal, state and local laws NERC Presentation Accounting Differences Nonprofit Financial Statements Statement of Financial Position Statement of Financial Activity Statement of Functional Expenditures Statement of Cashflow Notes to Financial Statements NERC Presentation For Profit Balance Sheet Income Statement (Profit/Loss Statement) Statement of Cashflow Statement of Stockholder’s Equity Notes to Financial Statements Accounting Differences Nonprofit For Profit Assets-Liabilities = Net Assets Stockholder’s Equity Owner’s Equity Subsections of Equity (Net Assets) Unrestricted; Temporarily Restricted; Permanently Restricted (based on donor stipulation) Paid in Capital Retained Earnings Examples of Revenue Contributions, dues, fees, grants, contracts, investment income Sales, fees, investment income Revenue Reporting Unrestricted; Temporarily Restricted; Permanently Restricted (based on donor stipulation) Expense Reporting Program; Management; Fundraising Sources of Funds Borrow from lenders Borrow from lenders Issue shares of stock Annual Reports IRS form 990; Audits SEC form 10-K NERC Presentation Revenue Reporting Unrestricted – Revenue with no donor restrictions Temporarily Restricted – Revenue whose use by the nonprofit is limited by donor imposed stipulations that either expire by the passage of time or can be fulfilled by the nonprofit (time or purpose restriction) Permanently Restricted – Revenue in which the use of the corpus by the nonprofit is limited by donor imposed stipulations that neither expire by the passage of time nor can be fulfilled by the nonprofit. Income from permanently restricted net assets can be temporarily restricted or unrestricted. NERC Presentation Net Assets Subsections • Permanently Restricted – net assets resulting from • Contributions or other inflows of assets whose use by the nonprofit is limited by donor imposed stipulations that neither expire by the passage of time nor can be fulfilled by the nonprofit • Other asset enhancements & diminishments subject to the same stipulations • Reclassifications to or from other classes of net assets as a consequence of donor imposed restrictions • Temporarily Restricted – net assets resulting from • Contributions or other inflows of assets whose use by the nonprofit is limited by donor imposed stipulations that either expire by the passage of time or can be fulfilled by the nonprofit • Other asset enhancements & diminishments subject to the same stipulations • Reclassifications to or from other classes of net assets as a consequence of donor imposed restrictions • Unrestricted – net assets that are neither permanently nor temporarily restricted • Include Board designated funds NERC Presentation Expense Reporting Nonprofits “should” (according to FASB) report, as part of the audit, expenses by function (program, management, fundraising). Voluntary health and welfare entities are required to do so. IRS form 990 requires nonprofits to report expenses by function. The importance of this report cannot be overstated. It is used to develop a program expense ratio (program expenses divided by total expenses). It is used to evaluate the nonprofit’s commitment to its program. Potential donors expect nonprofits to have a program expense ratio of 65% 75%. NERC Presentation Rating Nonprofits Charity Navigator states on its website, “Savvy donors know that the financial health of a charity is a strong indicator of the charity's programmatic performance. They know that in most cause areas, the most efficient charities spend 75% or more of their budget on their programs and services and less than 25% on fundraising and administrative fees. However, they also understand that mid-to-large sized charities do require a strong infrastructure therefore a claim of zero fundraising and/or administrative fees is unlikely at best.” Better Business Bureau states, “The charitable organization shall spend at least 65% of its total expenses on program activities…” NERC Presentation Ratios The two most important ratios for nonprofits are the program expense ratio and the cash reserve ratio. Program expenses need to be at least 65% of total expenses. • The issue for all nonprofits is how to determine which expenses are program, management or fundraising and how to cover overhead costs. Unrestricted cash reserves need to cover a minimum of three months of expenses. • The need and rationale for unrestricted cash reserves is discussed in Operating Reserve Policy Toolkit for Nonprofit Organizations, First Edition (September 15, 2010) Sponsored by the National Center for Charitable Statistics, Center on Nonprofits and Philanthropy at the Urban Institute, and United Way Worldwide. http://www.nccs2.org/wiki/index.php?title=Nonprofit Reserves Workgroup • This reserve is needed to cover cash flow, reimbursement grants and contracts, opportunities that might present themselves. NERC Presentation Statement of Financial Position - Master Inc. 2009 2008 Assets Cash & Cash Equivalents Accounts Recievable Bequest Receivable Prepaid Expenses Inventory Investments Trusts Property, Plant, Equipment Total Assets Liabilities and Net Assets Liabilities Accounts Payable Other Payable Deferred Revenue Funds held for others Pension liability Total Liabilities Net Assets Unrestricted Temporarily Restricted Permanently Restricted Total Net Assets Total Liabilities and Net Assets 997,387 616,346 500,000 29,181 63,831 19,796,636 19,356,658 7,427,156 1,217,056 662,707 45,043 64,821 17,131,263 25,088,666 7,268,869 48,787,195 51,478,425 366,427 152,030 12,737 314,707 654,551 1,500,452 484,843 166,387 49,995 396,257 644,121 1,741,603 9,363,531 19,949,016 17,974,196 47,286,743 10,742,024 25,439,979 13,554,819 49,736,822 48,787,195 51,478,425 NERC Presentation Statement of Financial Position Statement of Financial Activity - Master Inc. For the years ended June 30, 2009 & 2008 Unrestricted Temporarily Restricted Permanently Restricted 2009 Total 2008 Total Support and Revenue Grants Contracts Contributions Bequest Board Support Fee income Investment income Net Assets released Total Support and Revenue 314,053 1,000,000 426,711 128,237 6,639,659 272,822 1,035,213 1,780,430 422,436 5,251,665 452,565 (422,436) 158,366 6,639,659 314,053 1,000,000 554,948 6,639,659 272,822 1,035,213 2,232,995 12,049,690 292,795 1,000,000 512,523 254,657 787,002 2,364,298 5,211,275 Expenses Salaries & Benefits Training & travel Volunter expenses Event costs Contracted Services Communications Rent Insurance Repairs & Maintenance Depreciation Miscellaneous Change in net assets Unrealized gains (losses) Net Assets beginning Net Assets ending 2,427,129 2,427,129 2,290,487 71,849 71,849 56,673 82,317 82,317 69,292 1,639,393 1,639,393 1,735,118 632,834 632,834 431,897 198,227 198,227 227,635 219,182 219,182 162,685 34,581 34,581 38,752 201,406 201,406 191,138 147,363 147,363 161,447 25,452 25,452 32,008 5,679,733 5,679,733 5,397,132 (428,068) 158,366 6,639,659 6,369,957 (185,857) (950,425) (5,649,329) (2,220,282) (8,820,036) (4,684,558) 10,742,024 25,439,979 13,554,819 49,736,822 54,607,237 9,363,531 19,949,016 17,974,196 47,286,743 49,736,822 NERC Presentation Statement of Financial Activity Statement of Cashflow For the years ended June 30, 2009 & 2008 Operating Activities Change in net assets Depreciation Net realized/unrealized loss Changes in Property & investments values Accounts Receivable Prepaid Expenses Inventory Accounts Payable Other Payable Deferred revenue Funds held for others Pension Net cash utilized by operating activities 2009 (2,450,079) 147,363 3,382,628 2008 (4,870,415) 161,447 2,314,409 (1,202,251) 46,361 15,862 990 (118,416) (9,057) (37,258) (45,250) 10,430 (258,677) 2,370,149 (124,400) (1,390) (8,698) 191,422 (30,204) (30,720) (42,396) 17,464 (53,332) (6,048,002) (52,649) (6,100,651) 288,363 (113,215) 175,148 Investing activities Net proceeds from purchases (invest.) Purchace of property & equipment Net cash provided by (used for) investing Cash flows from financing Contributions restricted Increase (decrease) in cash Cash and cash equivalents at beginning Cash and cash equivalents at end of year 6,139,659 (219,669) 1,217,056 997,387 121,816 1,095,240 1,217,056 NERC Presentation Statement of Cashflows Statement of Functional Expenditures Statement of Functional Expenses - Master Inc. For the years ended June 30, 2009 & 2008 Program Services Salaries & Benefits Training & travel Volunter expenses Event costs Contracted Services Communications Rent Insurance Repairs & Maintenance Depreciation Miscellaneous 1,850,266 55,058 79,410 1,634,796 555,886 152,083 172,976 32,518 200,475 35,000 22,609 4,791,077 84% Management & General Fundraising 426,477 11,483 1,725 1,521 67,291 12,250 35,164 1,496 320 112,363 201 670,291 NERC Presentation 150,386 5,308 1,182 3,076 9,657 33,894 11,042 567 611 2,642 218,365 2009 2008 Total Total 2,427,129 71,849 82,317 1,639,393 632,834 198,227 219,182 34,581 201,406 147,363 25,452 5,679,733 2,290,487 56,673 69,292 1,735,118 431,897 227,635 162,685 38,752 191,138 161,447 32,008 5,397,132 Audit 2011 Audit 2010 ASSETS Cash and cash equivalents $ 325,015 $ 263,874 Investments (Note 2) 537,778 559,077 Receivables, net of allowance of $72,950 & $230,215 respectively 70,958 34,171 Other assets 24,623 23,627 Equipment and improvements, net (Note 4) 127,500 160,005 Total assets $ 1,085,874 $ 1,040,754 LIABILITIES Accounts payable Accrued expenses and other Advance deposits and tuition Capitalized lease (Note 5) Total liabilities $ 37,774 $ 49,631 244,086 196,708 502,486 309,690 106,823 125,924 $ 891,169 $ 681,953 NET ASSETS Unrestricted Temporarily restricted (Note 6) Permanently restricted (Note 6) $ (102,006) $ 86,548 233,097 216,935 63,614 55,318 Total net assets Total liabilities and net assets $ 194,705 $ 358,801 $ 1,085,874 $ 1,040,754 NERC Presentation Statement of Financial Position Audit 2011 Temporarily Permanently Unrestricted Restricted Restrticted Revenue and Support Tuition and fees, net Contribution Investment Income Rental income Other Net assets released from restrictions Total revenue and support Expenses Program services Instruction and student activities Total program services Support services General and administrative expenses Fundraising Total support services Total Expenses Excess of revenue over expenses Other Changes Loss on sale of property & equipment Unrealized gain (loss) on investements Total Other changes Change in Net Assets Net Assets beginning Net Assets ending $ 1,771,211 51,940 28,558 6,931 18,793 13,149 Audit 2010 Total $ 1,771,211 53,674 28,558 6,931 18,793 - $1,973,722 $123,093 $18,410 $12,706 $29,564 $ 1,879,167 $ 2,157,495 $ 1,669,704 1,669,704 $ 1,445,968 1,669,704 1,445,968 411,003 41,257 1,669,704 411,003 41,257 452,260 2,121,964 (231,382) - 452,260 2,121,964 (242,797) 589,678 $2,035,646 121,849 (171,613) (16,496) (188,109) (66,260) 425,061 358,801 $ 1,890,582 1,734 (13,149) $ (11,415) $ (11,415) - 42,828 42,828 (188,554) 27,577 27,577 16,162 8,296 8,296 8,296 78,701 78,701 (164,096) 86,548 (102,006) 216,935 233,097 55,318 63,614 358,801 194,705 NERC Presentation 546,976 42,702 Statement of Financial Activity Salaries & taxes Benefits Advertising Bad debt expense Class activities Computer Depreciation Insurance Interest Printing/Postage Professional services Equipment rental/repair/maint. Supplies Telephone Utilities Misc Total Expenses Program 1,102,058 110,264 26,817 Audit 2011 Management Fundraising 122,205 31,606 12,227 3,162 1,439 136,089 Audit 2010 1,291,887 114,813 30,630 98,731 47,680 23,743 55,468 43,194 25,723 26,259 28,185 781 322 711 15,069 25,423 3,022 10,306 4,465 9,229 1,671 76,875 432 84 Total 1,255,869 125,653 28,256 136,089 36,363 31,055 64,415 38,027 9,229 17,172 102,382 111,276 46,841 4,706 33,535 43,462 21,322 1,824 522 6,426 4,820 667 471 135 201 1,246 133,265 49,136 5,363 40,162 49,528 92,898 48,549 4,150 41,776 61,960 1,669,704 79% 411,003 41,257 2,121,964 2,035,646 36,363 27,252 53,787 32,851 NERC Presentation Statement of Functional Expenditures IRS Form 990 • The form 990, entitled, “Return of Organization Exempt from Income Tax” is a report that must be filed each year with the Internal Revenue Service by organizations exempt from Federal income taxes under section 501 of the Internal Revenue Code. Until 2008, those tax exempt organizations whose gross receipts were under $25,000 were exempt from filing a 990. • As of 2008, those tax exempt organizations whose gross receipts were $25,000 or less are now required to file electronically a 990-N. The Pension Protection Act of 2007 which created this new regulation stated that IRS will revoke the nonprofit status of an exempt organization that fails to meet it annual filing requirement for three consecutive years. This deadline came in 2010 and many nonprofits have lost their tax exempt status for failure to file. • This form is usually completed by the auditors but it must be signed by an officer of the Board or the Executive Director. In signing, the signor indicates that the information contained within the 990 is accurate. The Form 990 asks many questions about the management and structure of the organization. There is an entire section (Part VI Governance Management and Disclosure) which asks the following questions about Board governance and management) Section A – Governing Body and Management • Number of voting members of the governing body • Number of voting members who are independent • Family relationships between board/key employees • Documentation of meetings and actions • Was a copy of the 990 provided to the governing body before it was filed? The 990 also asks about policies and salaries. It is essential that these questions be answered honestly. • Section B – Policies- Does the organization: • have a written conflict of interest policy? • regularly and consistently monitor and enforce compliance with the policy • have a written whistleblower policy? • have a written document retention & destruction policy? • have a process for determining salaries for top management that includes comparability data? These questions must be answered as Yes/No IRS Form 990 Here is an example of the differences between one organization’s audit and their 990. As you can see, the ending net assets is the same but the numbers are accounted for differently. 990 Finances compared to Audited Financials Audit Audit Permanently Unrestricted Restricted Support and Revenue Rental Revenue Participation Fees Contributions Miscellaneous Total Support and Revenue Total Expenses Net Assets before other changes Contributions permanently restricted Investment income (loss) Change in beneficial interest Loss on disposition of assets Change in net assets Net Assets Beginning Net Assets Ending 1,617,242 79,616 188,889 510 1,886,257 1,369,916 516,341 (9,349) (106,882) 400,110 1,250,386 1,650,496 Audit 2009 Total Form 990 990 p.1 Total 1,617,242 364,665 17,422 (3,000) 379,087 251,041 630,128 79,616 188,889 510 1,886,257 1,369,916 516,341 364,665 8,073 (3,000) (106,882) 779,197 1,501,427 2,280,624 Contributions & grants Program Service revenue Investment income 553,554 1,696,858 5,073 Other - 510 2,255,995 1,476,798 779,197 (364,665) (79,616) (106,882) 1,501,427 2,280,624 31 2013 updates • March 1, 2013 AICPA issued its first updated Audit and Accounting Guide for Not-for-Profit Entities since 1996 FASB 116 & 117 • Highlights • • • • • • • • • Contributions vs exchange transactions Functional Expenditures Fiduciary responsibility to donor restrictions Time restrictions on donations Gift-in-kind Relationships between nonprofits and between nonprofits & for profits Donated advertising Programmatic investing Below market rate loans NERC Presentation Summary Accounting, financial reporting and financial management within nonprofits is challenging and fun. It requires adherence to GAAP, to federal, state and local laws and to the needs of the communities served by the nonprofit. NERC Presentation Resources • Utube presentation on the 2013 AICPA update guide for Not-for-Profits http://www.youtube.com/watch?v=CQlPtTXFWeM • AICPA Audit and Accounting Guide, Not-for-Profit Entities, March 1, 2014 • Operating Reserve Policy Toolkit for Nonprofit Organizations, First Edition (September 15, 2010) Sponsored by the National Center for Charitable Statistics, Center on Nonprofits and Philanthropy at the Urban Institute, and United Way Worldwide. http://www.nccs2.org/wiki/index.php?title=Nonprofit Reserves Workgroup • Financial and Accounting Guide for Not-for-Profit Organizations. Eighth Edition. Gross, Malvern; Larkin, Richard; McCarthy, John. PriceWaterhouseCoopers. John Wiley & Sons, Inc. 2012. • Board Source – Focused on nonprofit governance - www.boardsource.org • State organizations • • • • Maine Association for Nonprofits -www.nonprofitmaine.org New Hampshire Association for Nonprofits -http://www.nhnonprofits.org Massachusetts Association for Nonprofits - http://www.massnonprofitnet.org Vermont - http://share.commongoodvt.org NERC Presentation