When the IRS audits a nonprofit organization, one of the first things it looks at are the employment records and the classification of any independent contractors. If the organization has not been withholding income taxes and FICA payments for those the IRS considers to be employees, it can be a costly experience for the organization, and potential personal liability for the "responsible persons" who failed to withhold. Although it may seem like a real bother, err on the side of withholding.

Nonprofit managers are often called upon to conduct investigations of possible employee misconduct. The issues include theft of property, embezzlement, sabotage, fighting, drug or alcohol use, theft of trade secrets, sexual or racial harassment, and acceptance of bribes.

An effective investigation can be essential to defending a claim brought by a former employee, such as a discrimination, harassment, wrongful discharge, or defamation claim.

Charities and their accountants are struggling to understand how to account for donor-restricted endowments held by charities under the Uniform Prudent Management of Institutional Funds Act (“UPMIFA”) which has now been adopted in about 43 states. 

The Financial Accounting Standards Board has given considerable discretion to the boards of directors of the charities to determine how much should be treated as permanently restricted, and how much should be classified as temporarily restricted.  In our opinion, that bifurcation does not reflect the board’s power under the law and will lead to huge variation in financial statements across the country.  In our opinion, the funds should all be listed as permanently restricted, with an appropriate disclosure in the footnotes of the board’s power to appropriate from the fund for current expenditures.

Representatives of major charity umbrella groups, lawyers and other consultants provided a wide range of responses to the Senate Finance Committee White Paper proposing charitable reforms at a closed-door “roundtable” with Committee staff in Washington, July 22. (For a description of the proposed reforms, see Ready Reference Page No. 74, July 1-15, 2004.)

Sen. Chuck Grassley (R-IA) issued a statement highly critical of nonprofit tax-exempt hospitals while releasing answers of 10 major nonprofit hospitals prior to a Senate Finance Committee hearing on September 13. He questioned whether the public was receiving measurable benefits in return for “billions of dollars in tax breaks.”

A partial text of the statement follows:

Non-profit doesn’t necessarily mean pro-poor patient. Non-profit hospitals may provide less care to the poor than their for-profit counterparts. They may charge poor, uninsured patients more for the same services than they charge insured patients. They sometimes give their executives gold-plated compensation packages and generous perks such as country club memberships. All of this calls into question whether non-profit hospitals deserve the billions of dollars in tax breaks they receive from federal, state, and local governments.

Volunteers can be a great asset, or a great liability. You may be able to enhance their value by formalizing the mutual commitments in a clear and understandable document that provides the basis for their work.

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The Unifrom Mangement of Institutional Funds Act, first promulgated by the National Conference of Commissioners on Uniform State Laws in 1972 and subsequently adopted in the same or modified form by 46 states, has long established the basic rules of mangement of charitable endowments.

In simple and direct language, the Act defines an "institutional fund", provides broad powers of investment, permits delegation of investment management, establishes a prudent investor standard for investment managers, and deals with the release of restrictions.

Serving as a fiscal agent is an appropriate and creative method for a public charity to deal with charitable needs in its community. But it is fraught with problems and can create damage to all if the rules are not properly followed.

U.S. taxpayers and domestic charities often seek to support charitable activities abroad. But making grants for charitable activities in foreign countries subjects both U.S. taxpayers and U.S. charities to additional rules.

Contributions by U.S. donors are deductible if made to U.S. charities that conduct activities abroad, but are usually not deductible if made directly to foreign charities. Tax treaties with Canada, Mexico and Israel allow deductions for gifts to certain charitable organizations in those countries, but generally deductions are available only for gifts to U.S. charities.

By Virginia P. Sikes and Don Kramer
Montgomery McCracken

Even before 9/11, federal statutes and regulations prohibited support for terrorist organizations, but after the World Trade Center attack, the regulation and potential penalties have become even more severe.

Charities providing grants at home or abroad should familiarize themselves with the basic rules and take reasonable steps to try to avoid violations that can cost their exempt status or even send someone to jail.