Benefitting Too Much From A Charity

I suspect that many of us know more about public charities and foundations than we cared to know a couple of years ago.

What sets up the temptation is that someone is not paying taxes, or paying extraordinarily low taxes. For example, obtain that coveted 501(c)(3) status and you will pay no taxes, barring extreme circumstances. If one cannot meet the "publicly supported" test of a (c)(3), the fallback is a private foundation - which only pays a 2% tax rate (and that can be reduced to 1%, with the right facts).

We should all be so lucky.

Let's discuss the issues of charities and private benefit and private inurement.

These rules exist because of the following language in Section 501(c):

No part of the earnings [of the exempt organization] inures to the benefit of any private shareholder or individual….”

In practice the Code distinguishes inurement depending upon who is being benefitted.

If that someone is an “insider,” then the issue is private inurement. An insider is someone who has enough influence or sway to affect the decision and actions of the organization.

A common enough example of private inurement is excessive compensation to a founder or officer.  The common safeguard is to empower an independent compensation committee, with authority to review and decide compensation packages. While not failsafe, it is a formidable defense.

If that someone is an “outsider,” then the term is private benefit.

Here is a question: say that someone sets up a foundation to assist with the expenses of breast cancer diagnosis and treatment. Several years later a family member is so diagnosed. Have we wandered into the realm of private inurement or benefit?

The Code will allow one to receive benefits from the charity – if that individual is also a member of a charitable class. In our example, that class is breast cancer patients. If one becomes a member of that class, one should sidestep the inurement or benefit issue.

The “should” is because the Code will not accept too small a charitable class. Say – for example - that the charitable class is restricted to the families of Cincinnati tax CPAs who went to school in Florida and Missouri, have in-laws overseas and who would entertain an offer to play in the NFL. While I have no problem with that charitable class, it is very unlikely the IRS would approve.

By the way, the cost of failing can be steep. There may be penalties on the charity and/or the insider. Push it too far and the organization's exempt status may be revoked altogether.

Or you may never be exempt to begin with. Let’s look at a recent IRS review of an application for exempt status.

A family member has a rare disease. You establish a foundation to "assist adolescent children and families in coping with undiagnosed and/or debilitating diseases."

The Code allows you to operate for a while and retroactively apply for exemption, which you do.

Sounds good so far.

You and your spouse are the incorporators.

This is common. You can still establish an independent Board.

Your organizing paperwork does not have a "dissolution" clause.

Big oversight. The dissolution clause means that - upon dissolution - all remaining assets go to another charity. To say it differently, remaining assets cannot return to you or your spouse.

The charity is named after your son, who suffers from an unidentified illness.

Not an issue. I suspect many foundations begin this way.

Your fundraising materials specifically request donations to help your son.

You are stepping a bit close to the third rail with this one.

Since inception, the only individual to receive funds is your son. Granted, you have said you intend to make future distributions to other individuals and unrelated nonprofits with a similar mission statement. Those individuals and organizations will have to apply, and a committee will review their application. It just hasn’t happened yet.

Problem.

The IRS looked at your application for exemption and bounced it. There were two main reasons:

First, the problem with the paperwork, specifically the dissolution clause. The IRS would likely have allowed you the opportunity to correct this matter, except that ...

Secondly, there were operational issues. It does not matter how flowery that mission statement is. The IRS reserves the right to look at what you are actually doing, and in this case what you were actually doing was making your son's medical expenses tax-deductible by introducing a (c)(3). Granted, there was language allowing for other children and other organizations, but the reality is that your son was the only beneficiary of the charity's largesse. The rest was just words.

The IRS denied the request. All the benefits of the organization went to your family, and the promise of future beneficiaries was too dim and distant to sway the answer. You had too small a charitable class (that is, a class of one), and that constitutes private inurement.

And you still have a tax problem. You have an entity that has collected money and made disbursements. The intent was for it to be a charity, but that intent was dashed. The entity has to file a tax return, but it will have to file as a taxpaying entity.

Are the monies received taxable income? Are the medical expenses even deductible? You have a mess.

The upside is that you would only be filing tax returns for a year or two, as you would shut down the entity immediately.

Worst. Tax. Advice. Ever.

Dad owned a tool and die company. Son-in-law worked there. The company was facing severe foreign competition, and - sure enough - in time the company closed. For a couple of years the son-in-law was considerably underpaid, and dad wanted to make it up to him.

The company's accountant had dad infuse capital into the business. The accountant even recommended that the money be kept in a separate bank account. Son-in-law was allowed to tap into that account near-weekly to supplement his W-2. The accountant reasoned that - since the money came from dad - the transaction represented a gift from dad to son-in-law.

Let's go through the tax give-and-take on this.

In general, corporations do not make gifts. Now, do not misunderstand me: corporations can make donations but almost never a gift. Gifts are different from donations. Donations are deductible (within limits) by the payor and can be tax-free to the payee, if the payee has obtained that coveted 501(c)(3) status. Donations stay within the income tax system.

Gifts leave the income tax system, although they may be subject to a separate gift tax. Corporations, by the way, do not pay gift taxes, so the idea of a gift by a corporation does not make tax sense.

The classic gift case is Duberstein, where the Supreme Court decided that a gift must be made under a "detached and disinterested generosity" or "out of affection, respect, admiration, charity or like impulses." The key factor the Court was looking for is intent.

And it has been generally held that corporations do not have that "detached and disinterested" intent that Duberstein wants.  Albeit comprised of individuals, corporations are separate legal entities, created and existing under state law for a profit-seeking purpose. Within that context, it becomes quite difficult to argue that corporations can be "detached and disinterested."

It similarly is the reason - for example - that almost every job-related benefit will be taxable to an employee - unless the benefit can fit under narrow exceptions for nontaxable fringes or awards. If I give an employee a $50 Christmas debit card, I must include it in his/her W-2. The IRS sees an employer, an employee and very little chance that a $50 debit card would be for any reason other than that employment relationship.   

What did the accountant advise?

Make a cash payment to the son-in-law from corporate funds.

But the monies came from dad, you say.

It does not matter. The money lost its "dad-stamp" when it went into the business.

What about the separate bank account?

You mean that separate account titled in the company's name?

It certainly did not help that the son-in-law was undercompensated. The tax Code already wants to say that all payments to employees are a reward for past service or an incentive for future effort. Throw in an undercompensated employee and there is no hope.

The case is Hajek and the taxpayer lost. The son-in-law had compensation, although I suppose the corporation would have an offsetting tax deduction. However, remember that compensation requires FICA and income tax withholding - and no withholdings on the separate funds were remitted to the IRS - and you can see this story quickly going south. Payroll penalties are some of the worst in the tax Code.

What should the advisor have done?

Simple: have dad write the check to son-in-law. Leave the company out of it.

The Goose And Gander Tax Bill

Here is something that will catch your eye:

It is undisputed that the Debtor failed to file its tax returns for the years 2006 to 2008; and that for such failure, the Debtor incurred penalties totaling $3,662,000."

It is a bankruptcy case from Delaware.

COMMENT: You may wonder how a tax case wound up in bankruptcy court. Bankruptcy law keeps its own beat, and a bankruptcy court can have near-extraordinary powers. For example, the court can determine the amount or legality of any tax, any fine, or any penalty relating to a tax. That is what happened here. The IRS assessed a penalty, the taxpayer protested, the IRS decided it was right (surprise) and submitted the penalty as a claim to the bankruptcy court.

And I find the IRS position so extreme as to constitute bad faith. I further think the IRS should be required to reimburse the professional fees incurred defending against its reckless behavior. You miss a filing deadline by a day or two and one would think the Treasury underpinnings of the nation are in mortal throes. Have the IRS bankrupt you while enforcing some capricious tax argument, however, and you are expected to be a good sport.

I would like to someone (ahem, US Senator Paul) take up the cause. It could be called the Good For The Goose, Good For The Gander - Time For The IRS To Take Responsibility - Act. If the IRS can penalize you for unreasonable positions, then the IRS should also be subject to penalties for unreasonable conduct.  The penalty would be paid to the affected taxpayer.

Our protagonist (Refco Community Pool) formed in 2003 as a partnership. It was an investment group, and their thing was to track the S&P Managed Futures Index. To do this, they needed an investment advisor. They found one in the Cayman Islands (Sphinx Managed Futures Fund). The advisor (Sphinx) in turn used a clearinghouse (Refco, LLC) to execute trades and whatever.

OBSERVATION: Right off the bat, we have two Refco's going - "Pool" and "LLC." Set this aside, as it is not relevant to our story.

Here is what happened:

1. In 2005 Refco LLC filed for bankruptcy. This caused a run, meaning that ...
2. Sphinx yanked out $312 million. However, ...
3. Sphinx had to return $260 million as was deemed a "preference" action.
4. In 2006 Sphinx went into liquidation. As part of the process, the Court appointed two liquidators.  
5. The liquidators soon found very serious accounting issues. They in fact advised that they could not assure the accuracy of tax and accounting information provided investors.
6. Refco Pool wanted its money from Sphinx, but all they received was something called "special situation shares." They were special because no one knew what they were worth until the liquidation was complete, a process which stretched into 2013. 

The IRS noticed that Sphinx was not filing tax returns and issuing K-1s. The Sphinx liquidators explained that it would cost between $5 and $7 million to reconstruct records to even approach a tax return. The two sides came to an agreement, and Sphinx was absolved of filing K-1s from 2005 to 2007.

Let's back up a bit. Who invested in Sphinx? It was Refco Pool. The IRS next went after Refco Pool for not filing its tax return and issuing K-1s.

COMMENT: Here we have a conundrum. Refco Pool has one main asset - special situation shares (whatever that means) in a bankrupt entity with accounting problems severe enough that its liquidators advise against using any numbers. A tax return requires numbers. What to do?

           

Refco Pool argued reasonable cause for abatement of the penalty. You may as well have Refco Pool discover a new planet as get a tax return out of whatever information they could pry from Sphinx.

No, no, no, said the IRS. Refco Pool could have used selected files and summaries and reports and disbursement statements and a receipt from its last visit to Dairy Queen to reconstruct records that Sphinx should have provided but did not because the IRS said it was OK not to and then Refco Pool could have filed its own partnership tax return....

Well ... yes, Refco Pool could. However, the information was unreliable if not completely inaccurate. In fact, the matter went further than that. Even if Refco Pool could do some Harry Potter alchemy, it would not know how to separate the separate tranches, meaning it could not determine its share. And, since we are talking about it, Refco Pool would have no idea what to do with the "special" part of its share - which was certainly less than 100% but not certain to be more than 0%.

The Bankruptcy Court explained:           

As an accrual method taxpayer, the Debtor cannot recognize income until 'all the events have occurred which fix the right to receive such income and the amount thereof can be determined with reasonable accuracy.'"

One could persuasively argue that Refco Pool could not meet this threshold.

The IRS persisted that Refco Pool could have assembled numbers - however fragile - and filed a tax return had it really wanted to.

ANALYSIS: The judicial standard however is not whether Refco Pool exhausted all possible alternatives. The standard is whether Refco Pool exercised the level of care that a reasonably prudent person would under the same circumstances. 

The Court pointed out the tax risk that Refco Pool would have assumed by filing a tax return:

By knowingly filing inaccurate returns, the Debtor had a reasonable cause for concern given the specter of accuracy-related penalties it might incur ...."

The IRS could have penalized Refco Pool if the numbers proved to be substantially inaccurate.

Wait, there is more.

Refco Pool had approximately 1,600 partners to whom it was obligated to issue K-1s. Had those K-1s gone south, the partners too could have gone after Refco Pool.

The Court was unconvinced whether Refco Pool could even sign a tax return:           

Based on this knowledge, a reasonable person would likely be concerned with signing the jurat clause at the bottom of Form 1065..." 

COMMENT: The jurat clause is the one at the bottom of the tax form that reads "... to the best of my knowledge and belief, it is true, correct, and complete."

The Court concluded: 

Based on the evidence presented, the Debtor proved that it carefully considered its filing obligations and undertook appropriate steps in an effort to avoid the failure. Accordingly, the Court holds that the debtor acted in a responsible manner both before and after the failure to file occurred."

The Bankruptcy Court disallowed the IRS penalties.

I grant you, this is an extreme case, but perhaps it takes the extreme case to spotlight outrageous government behavior.

Tax penalties can generally be abated for "reasonable" cause. The problem is that the IRS has redefined "reasonable" in a completely unreasonable way. Why? Many suspect that it wants to keep the penalties to supplement its Congressional funding. Is that really what we want: for the IRS to self-fund by automatically assessing penalties and then imperiously decreeing that any request for abatement of said penalties is not "reasonable"?

I propose a compromise if we cannot get the Goose & Gander bill passed: all IRS penalties are to be returned to Treasury. They are then to be re-budgeted as Congress determines, with no assurance that the monies would return to the IRS.  Perhaps that would cool the IRS jets a bit.

When Does A Business "Start"?

There is a category of deductions that the tax Code refers to as “start up” or “pre-opening” expenses.

For the most part, you do not want to go there.

An active trade or business is allowed to deduct its normal and operating expenses (as defined and limited by the Code, of course). There is a trap in that description, and the trap is the word “active.”

What does it mean be active?

It means the business is up and running.

How can a business not be up and running?

Let's say that you are opening a Five Guys Burgers and Fries restaurant. You have all kinds of expenses - in addition to building the place - before you open the doors. You have to turn on the lights, hire and train employees, establish suppliers and receive inventory, and so forth.

All this before you sell your first hamburger.

The problem is that you cannot deduct these expenses, because you have not yet started business. You have to be in business before you can deduct your expenses. There is a Kafkaesque absurdity to the whole thing.

The Code however does step-in and provide the following safety valve in Section 195:

(a)Capitalization of expenditures

Except as otherwise provided in this section, no deduction shall be allowed for start-up expenditures.

(b)Election to deduct 

(1)Allowance of deduction If a taxpayer elects the application of this subsection with respect to any start-up expenditure
(A)the taxpayer shall be allowed a deduction for the taxable year in which the active trade or business begins in an amount equal to the lesser of

(i) the amount of start-up expenditures with respect to the active trade or business, or

(ii) $5,000, reduced (but not below zero) by the amount by which such start-up expenditures exceed $50,000, and

(B) the remainder of such start-up expenditures shall be allowed as a deduction ratably over the 180-month period beginning with the month in which the active trade or business begins.

I do not consider it much of a safety valve, as the best you can get is $5,000. Let the expenses go over $55,000 and you lose even that. You deduct the balance over 180 months.

That is 15 years. Think about it: you can start a kid in first grade and almost put him/her through college before you get to fully deduct your Five Guys start-up and pre-opening expenses.

And that is the problem: the period is so long that it effectively is a penalty. It is one thing when Walmart opens a super store, as they are towing the resources (and cash flow) of a Fortune 500. It is a different issue when a budding entrepreneur heads out there with a hope and a prayer.

Let’s look at the Tizard case.

Julie Tizard graduated from Baylor and entered the Air Force as a 2^nd lieutenant. While serving at Wright-Patterson in Dayton, Ohio, the USAF announced that women would be allowed to apply for pilot positions. Julie was all over that, becoming a pilot and rising through the ranks as instructor pilot, flight commander and wing flying safety officer.

In 1990 she started working as a full-time commercial pilot with United Airlines, where she flew 737s, 757s, 767s and the Airbus 320.

The FAA requires commercial pilots to retire at age 65.

Knowing that, she looked for things to do after she turned 65. She decided to start an aviation business in Arizona. She selected an airplane model (the Slingsby T-67C “Firefly”), a single engine propeller model that is fuel-efficient, has excellent visibility, is responsive and is “acrobatic.” Acrobatic apparently has a different meaning to pilots than to ordinary people – think of intentionally rolling or stalling the plane. You have as much chance of getting me on that plane as the Browns have of winning the Super Bowl this year.

She purchased the plane for $54,200. It turned out that the guy selling the plane was a real estate developer with a development in Phoenix. He expressed interest in her services. She was off to a promising start.

She posted a picture of herself with the plane on Facebook. She received 50 “likes.”

The same day she got the plane home, she took out an acquaintance whom she considered a potential client. Being promotional, Julie did not charge her.

Julie set-up an LLC (Tizard) for the business.

She worked up a business plan. She would start by offering aerial land surveys, flight charters and aviation photography, as well as professional aviation and safety consulting. The Firefly was well-designed for this use, and to the best of Julie’s knowledge she was the only person in central Arizona offering this menu of services.

She crunched the numbers and figured that she would break-even at 2.5 aviation hours per month. At 15 hours she was earning a meaningful profit.

Sounds like Julie knew what she was doing.

Time came to prepare her 2010 tax return. She had no income from the airplane and over $13 thousand of expenses.

The IRS bounced her return. They said she had not yet started business.

There are several factors that one considers in determining whether business activities have started:

         (1) Sales

         This is the best evidence, but she did not have any.

         (2) Advertising and marketing

She posted on Facebook and had approached both the seller of the plane as well as an acquaintance as potential customers.

         (3) Business Plan

She had given the matter some thought. She researched potential competition and had analyzed costs to the extent she knew how many flight hours per month were required to break-even.

Seems to me that she had one solid (factor (3)) and one so-so (factor (2)).

Problem is that factor (1) is the elephant in the room. Nothing gets the IRS to back off more than a real person handing over real money.

The Court seemed to like Julie:

The Court found the petitioner's testimony to be credible and forthright."

But the Court was not impressed with Julie's marketing:

However, other than the picture and short statement (that makes no mention of her aviation business) that she posted on her personal Facebook page ..., petitioner did nothing in 2010 to formally advertise to the general public ... or describe the various services that Tizard would offer to its clients."

That left a lot of pressure on factor (3). It was too much pressure, unfortunately:

Petitioner's ... efforts ... do not impress the Court as evidence that Tizard was actually functioning and performing the activities for which it was organized."

The Court decided she had not started business in 2010.  She had to run her expenses through the Section 195 filter. The best she could deduct was $5,000, and the balance would be allowed over the next 15 years.

Is there something she could have done differently?

She could have tried harder to line-up that first paying customer. To be fair, she acquired the plane late in the year, which allowed her little time to react.

Absent revenues, marketing became a critical factor. The Court wanted more than a hopeful conversation or Facebook photo of her next to her new plane. 

I am thinking she should have set-up a business website - including history, services, photos - for the airplane business. Perhaps that, with her business plan, would have been enough.

The Hosbrook Road Terrible Tax Tale

Let's talk about S corporations.

There are two types of corporations: C corporations and S corporations. Think Amazon or Apple and we are talking about "C" corporations: they file their own returns and pay their own taxes. Think of family-owned Schmidt Studebaker Carriage & Livery and we are talking about "S" corporations: only so many shareholders, do not normally pay tax, the numbers flow-through to the owners who pay the tax on their personal returns.

S corporations are almost the default tax structure for entrepreneurial and family-owned businesses, although in recent years LLCs have been giving them a run for their money. They are popular because the owner pays tax only once (normally), as contrasted to a C corporation with its two levels of tax.

But there are rules to observe.

For example, you have to keep track of your basis in your stock - that is, the amount of after-tax money you have invested in the stock. Your basis goes up as you put the business income on your personal return, but it also goes down as you take distributions (the S equivalent of dividends) from the company. You are allowed to take distributions tax-free as long as your basis does not go negative. Why? Because you paid tax on the business income, meaning you can take it out without a second tax.

Accountants keep permanent schedules to track this stuff.  Or rather, they should. I have been involved in more than one reconstruction project over the years. You have to present these schedules upon IRS audit.

I did not previously have a worse-case story to tell. Now I do. The best part is that the story takes place in Cincinnati.

Gregory Power is a commercial real estate broker with offices first on Montgomery Road and then on Hosbrook Road. He started his company (Power Realty Advisors, Inc.) in 1993. Somewhen in there he used Quicken for his accounting, and he would forward selected reports to his accountant for preparation of the returns.

COMMENT: Quicken is basically a check-register program. It tracks deposits and withdrawals, but it is not a general ledger - that is, the norm for a set of business books. It will not track your inventory or depreciable assets or uncollected invoices, for example.

There was chop in the preparation. For example, the numbers were separated between those Mr. Power reported as a proprietor (Schedule C) and those reported on the S return. Why? Who knows, but it created an accounting problem that would come back to haunt.

He lost money over several years, including the following selected years:

            1995              (191,044)

            1996              ( 70,325)

            2002              ( 99,813)

Nice thing about the S corporation as that he got to put these losses on his personal return. To the extent his return went negative, he had a net operating loss (NOL) which he could carry-over to another year. Mind you, he got to put those losses on his personal return to the extent he did not run out of basis - yet another reason to maintain permanent schedules.

He took distributions. In fact, he took distributions rather than taking a salary, which is a tax no-no. The IRS did not come after him on this issue because it had another angle of attack.

He had the corporation pay some of his personal and living expenses, which is another no-no. Accountants will reclassify these to distributions and tell you to stop.

Some of his S corporation returns did not show distributions. This is not possible, of course, as he was taking distributions rather than salary. That tells me that the accountant did not have numbers. It also tells me the accountant could not maintain the schedules - at least not accurately - that we talked about.

Sure enough, his big payday years came. There was tax to pay ... except for those NOLs that he was carrying-forward from his bad years. He told the IRS that he had over $500,000 of NOLs, which he could now put to good use.

Problem: He did not have those schedules.

Solution: He or his accountant went back and reconstructed those schedules.

Problem: The IRS said they were bogus.

Solution: You go to Tax Court.

COMMENT: It would have been cheaper to keep schedules all along.

Mr. Power ran into a very severe issue with the Court: it does not have to accept your tax returns as proof of the numbers.  The Court can request the underlying books and records: the journals, ledger and what-not that constitutes the accounting for a business.

The Court did so request.

He trotted out those Quicken reports and handwritten summaries.

The Court noted that Mr. Power was somehow splitting numbers between his proprietorship and the corporation, although it did not understand how he was doing so. This made it difficult for the Court to review a carryforward schedule when the Court could not first figure-out where the numbers for a given year were coming from.

Strike one.

The Court wanted to know what to do with those tax returns that did not show distributions, which it knew was wrong as he was taking distributions rather than a salary.

Strike two.

And there was the matter of personal expenses being paid through the company. It appears that in some years the corporation deducted these expenses, and in other years it did not. The Court wasn't even sure what the amounts were. It did not help when Mr. Power commingled business and personal funds when buying his house in Indian Hill.

Strike three.

His business accounting was so bad that the Court bounced the NOL carryforward. The whole thing.

He owed tax. He owed penalties.

And no one knows if he really had an NOL that he could use to sop-up his profitable years because he had neglected his accounting to an extreme degree. He could not prove his own numbers. 

But Mr. Power has attained tax fame.