Elaine's Tax Tips for Nonprofits

Relief From the IRS for Misclassified Workers

2011-10-20T06:16:00.000-07:00

In Notice 2011-95 issued on September 21, 2011, the IRS announced a new voluntary compliance program focused on assisting employers in the proper classification of its workers. The new settlement program provides a hugh financial relief for those employers who have improperly classified certain workers as independent contractors that should be classified as employees.

The Issue

It is all too common that employers classify workers as independent contractors that should be treated as employees. There are many reasons this occurs, but some of the most common that I hear include:

The employer is just hiring the worker on a trial basis

The worker is only going to be working on an infrequent basis

The worker is only going to be working on a one time occurence

The worker is going to be paid a flat fee

The worker wants to be treated as an independent contractor

It is too expensive to treat a worker as an employee

Unfortunately none of the above excuses are valid. Relying on such excuses, an employer can end up in the expensive situation of having to pay back payroll taxes when the IRS or a state authority steps into the picture. Even voluntarily correction of a workers classification can be so expensive the an employer prefers to continue on an incorrect path rather than make the necessary corrections.

IRS Provides An Out

The new program announced by the IRS will allow an employer to properly classify a worker as an employee on a prospective basis for a very small payment. Employers are eligible to enter the compliance program if they:

Consistently have treated the workers in the past as nonemployees;

Have filed all required Forms 1099 for the workers for the previous three years;

Are not currently under audit by the IRS; and

Are not currenlty under audit by the Department of Labor or a state agency.

An employer can apply for the program by filing Form 8952 at least 60 days before they want to begin treating the workers as employees. For example, if an employer would like to begin treating certain workers as employees as of the beginning of 2012, then it must file the Form 8952 by November 2, 2011.

The form includes a calculation that assesses the amount due on the reclassification. The amount is based on the wages paid during the most recently completed tax year and it is the equivalent of approximately 1.3% of the wages paid. This is a substantial savings over the options that exist outside of this program.

Application of Program for Churches and Other Nonprofit Organizations

One of the greatest liabilities for a church or a nonprofit is errors in the area of payroll. While not all of them center around worker classification, it is one of the most common errors. Churches and nonprofits often make incorrect decisions in this area due to relying on what another church/nonprofit or by relying on what they believe should be the correct classification. The fact is that the definition of an employee is very broad and encompassses most workers in nonprofits other than outside consultants or workers that are clearly operating a business that is available to general public. Some of the most common workers that are misclassified include:

Nursery workers

Musicians

Maintenance workers

Other workers that work either part time or on an irregular schedule

Action Required

This program is a definite consideration for all churches/organizations that have a worker classification issue. All organizations should take the time to review the workers currently classified as independent contractors to determine if that classification is correct. It may be necessary to engage a professional to assist with the proper classification of a worker. If this review discloses workers that should be classified as employees, then an organization should consider filing Form 8952 to take advantage of this program. Employers that are accepted into this program will not be audited on payroll taxes related to these workers for prior years. Participating employers will, for the first three years under the program, be subject to a special 6 year statute of limitations, rather than the usual three years than generally applies to payroll taxes.

IRS Offers Relief For Cell Phones

2011-10-03T05:47:00.000-07:00

Previously I posted the update regarding the change in cell phone classification in regards to the strict documentation procedures that had been required to justify business use of the cell phone. However, despite the relief given, we were still a little in the dark about the position of the IRS in regards to employer provided cell phones and employer reimbursements for the use of personal cell phones.

The Guidance
Recently the IRS issued Notice 2011-72 granting an early Christmas present to all of us. The notice walks through the same analysis as offered in my previous blog, but it goes one step further. In the notice, the IRS stated that if an employer can determine that it has a bona fide business reason for issuing an employee a cell phone and the cell phone is not considered to be compensation for the employee's services, then it will deem that all the documentation standards of IRC Sec. 132 to qualify the benefit as a "working condition" fringe benefit will have been met and any personal use will be deemed to be a "de minimis" fringe benefit.

While the above notice does not address reimbursements to an employee for the use of their personal cell phone, the IRS issued a memorandum to their field examiners on Septemeber 14, 2011 extending similar logic to reimbursements. The example provided in the guidance allowed the tax free reimbursement of an employee's flat rate plan where the employer deemed that there was a business reason for the employee to have a cell phone.

The Gift
Having documentation "deemed" to be met is the gift from the IRS. Normally, a business would have to maintain documentation to show that the business useage was the predominant use of the phone. With this documentation burden relieved, the employer must only document the business reasons why an employee is required to have the phone. Providing the phone as a part of the employee's compensation package will disqualify this as a tax free benefit. Therefore, I recommend that it not be included in the employee's employment offer as a part of his package.

The Action
Since we are now down to one documentation step, I urge you to not skip this step. When documenting the arrangement with the employee, fully state why it is important that an employee have the cell phone. One word of caution, if the reason is so that the employer can communicate with that employee at any time, you could create a wage and hour issue with nonexempt employees. Remember, if you put them on call, you may have to pay them.

Consequences of Participant Designated Accounts

2011-07-07T14:34:00.000-07:00

One subject that continually makes its way into practically every speech I deliver has to do with the tax consequences of maintaining participant designated accounts for fundraising activities. I have been speaking about this particular subject for approximately 4 years as the IRS has continued to get more and more serious about the ramifications of maintaining these types of accounts.

Possible Scenario:

Youth group needs money to help pay for camp fees for the students. A local advertiser tells the church that they will pay the church a set amount, if the students will go to a local stadium and place flyers in all the stadium seats prior to the big game on Sunday. The youth minister tells the kids that the funds paid to the church will be designated to the students' camp fees according to how long they assist in putting out the flyers.

Potential Consequences:

Payroll - The students have now been paid for their help in putting out the flyers. Therefore, they have been paid for their personal services. This has been done under the direction of the church staff. Therefore, all the students who have money credited to their camp fees have been compensated for their services and have been turned into employees of the church. Now the church is required to have all of the employment forms completed on the students and pay all the related payroll taxes. This was the result a few years ago with two booster clubs in Kentucky. See the story at http://www.kentucky.com/211/story/485490.html.

Tax Exemption - The IRS has ruled that this type of activity is private benefit to the students. Substantial private benefit to individuals can jeopardize an organizations exempt status. This was the conclusion in PLR 201035034 issued by the IRS last year. In the letter ruling, the IRS revoked the tax exempt status of a booster club due to the fact that practically all of their activities were performed to generate funds directed into participant accounts.

Income Tax - While not automatic, many fundraising activities do not generate unrelated business income due to the exception provided for activities conducted by volunteers. If all the volunteers have been turned into paid employees, this exception is no longer available. Therefore, it is possible that the activity will generate unrelated business income and subject the organization to filing Form 990-T.

Just How Serious????

Responses to this topic have varied from incredulous to skeptical to dismay. With the issuance of the above private letter ruling, it was obvious the IRS was beginning to take this issue to a more public level. Earlier this year I was informed that exempt organization agents were being trained in this specific issue.

On June 27, 2011, the Director of Exempt Organizations, Lois Lerner, issued a directive to the Director of Examinations and the Director of Rulings & Agreements. The directive clearly states that such programs are considered to be private benefit and could result in an organization losing its exempt status and the amounts credited to a participant's account could result in employment taxes. With this directive, the issue will be considered one for review for organizations that are undergoing examinations and/or that are requesting rulings as to their tax exempt status.

Conclusion

While these types of fundraising programs still can provide additional funds for a church, school or other type of organization, the distribution of the funds cannot be connected with the work performed by the person. The funds must be used for the general purposes of the organization or to provide for a reduced cost of an activity for all involved, working or not.

The List Is Out

2011-06-22T06:44:00.000-07:00

Background
In 2006 Congress passed the law that automatically revoked the tax exempt status of any organization that failed to fulfill its Form 990 filing requirement for 3 years in a row. 2010 brought the first year this would be possible since the passing of the law with those who failed to file anything for the years 2007, 2008 & 2009. While the revocation date was effective for calendar year returns on May 17, 2010, the IRS continued to show some grace by allowing organizations to file through a special program conducted through October 15, 2010.

Results
With that program at its end and the final time passing to file most of the returns for the 2009 year, the IRS has finally issued the dreaded list of revocations. The list contains the names of approximately 275,000 organizations and can be found at www.irs.gov/autorevocationlist. It is organized by state. (Strangely enough the revocations for Texas is so large that it takes two files to cover it.)

What To Do
The law is clear - there is no disputing the revocation with the IRS or challenging it through the courts. IRS Notice 2011-44 details the process for reinstatement of tax exempt status. Organizations on the list are required to file new exemption applications, either Form 1023 or Form 1024, to request the exempt status be reinstated. Both the exemption application and the envelope should clearly indicate "Automatically Revoked" in order for the application to be directed to correct processing area.

Reinstatement will be effective the filing date of the exemption application unless the organization can provide reasonable cause for the failure to file Forms 990 all those years and provides the Forms 990 for 2007, 2008, 2009 and 2010. If the organization would have been eligible to file Form 990-N during all of the three missed year, then special procedures have been described to allow for a lower user fee to be paid with the application and they will gain retroactive exempt status. Procedures describing these special provisions can be found in IRS Notice 2011-43.

There will be many questions as organizations scramble to try to regain tax exempt status. The IRS has addressed many of those in its frequently asked questions found at http://www.irs.gov/charities/article/0,,id=221600,00.html. If an organization has received its notice of revocation or it is listed on the published list, it should seek the counsel of a CPA experienced in preparation of Forms 990 as well as experienced in the preparation of Forms 1023/1024.

Housing Allowance for Vacation Homes

2011-01-31T07:48:00.001-08:00

In a remarkable decision by the full Tax Court, the Court has ruled that Phil Driscoll should be allowed to utilize the housing allowance provisions under IRC Sec. 107 for both his primary residence and his lake home. Utilizing a technical provision in the law, the Court has agreed that the term "a home" should not be interpreted as purely singular in nature, but should also apply in the plural. The result is that the housing allowance utilized to provide the Driscoll's lake home is excluded from their income. Writing the dissenting opinion, Judge Gustafson noted that there was insufficient evidence to state that Congress intended multiple homes to be covered under this provision. Additionally, he points out that the court's job is to narrowly construe the exclusions from income and not to throw open the door to excluding expenses for two, three, or four homes. These are valid points and will more than likely be the basis for an appeal by the IRS. What does this mean for ministers today? A Tax Court decision is binding on the IRS. Therefore, at this moment, it is the law in regards to this provision. However, it is more than likely that the IRS will appeal this ruling. It is not one that they can easily agree to. In the event that the appeal rules in favor of the IRS, then it will be as if this current case was never law. However, in the event the IRS does not appeal or loses the appeal, this case stands as binding on the IRS. It seems that "caution" would be the best watch word for the day. However, there are some actions that ministers should take today to capture this tax benefit in the event the case is allowed to stand. Ministers should consider the following actions: For 2011: Preparing for the Future

Housing allowance cannot be changed at the end of the year, so ministers with current second homes should consider increasing their housing allowance for 2011 to cover the expenses of the second home. If the decision of the Tax Court is not reversed by an appellant court, it would be too late to fully benefit from this change in the law at the end of a tax year.

For 2010: To Claim or Not To Claim

Ministers with excess housing allowance for 2010 should consider if they are ready to follow this ruling and claim expenses on a second home for 2010. This is a serious decision that should be fully explored with a tax professional. There are two viable options to be considered:

Use the expenses associated with the second home to determine the amount of housing allowance to be excluded from income and do not report any excess housing allowance on the 2010 Form 1040. This is an acceptable provision under current law. However, in the event the case is overturned on appeal, the IRS will have the ability to adjust the Form 1040 and assess all related taxes, penalties, and interest associated with the tax savings from this particular provision. Depending on the amount of the tax involved, ministers taking this route may wish to invest the additional taxes saved in order to preserve the funds in the event of a reversal.

Do not use the expenses associated with the second residence to determine the amount excluded from income and file as would be normal. As a second step, the minister may file a protective refund claim stating that they are due a refund based on this particular case. If the Driscoll case is on appeal, the IRS will more than likely hold the refund claim until a decision has been issued by the appellant court. This will take an estimated 2 to 3 years.

As previously stated, these are very serious decisions to consider and require an understanding of the ramifications of each decision. However, with the assistance of a tax professional, a minister should be able to make a decision that aligns both with the law and with his/her risk tolerance level.

Driscoll v. Commissioner of Internal Revenue, 135 T.C. No. 27.

Long Awaited Cell Phone Relief

2010-09-24T07:40:00.000-07:00

The Small Business Jobs Act of 2010 has passed through Congress and is on its way to the President's desk for signature. While the majority of the bill is directed at for profit businesses, there is a provision that will bring great relief to nonprofits as well as for profit businesses. The bill contains the long awaited relief for the onerous rules regarding employer provided cell phones. Under the old law, cell phones were treated as "listed property". This classification required the extensive documentation of who, when, and why of each call in order to substantiate the business purpose of the call and the related business use of the phone. This classification was created at the time when cell phones were rather large and sat in our cars and not in our pockets. The phones and the calling plans were very expensive. The recent advances in technology have created a totally different animal. Between cheap phones, flat rate plans and data services, the substantiation requirements of "listed property" became a burden too great to bear. In recent years, employers have either gone to not paying for the phones at all or including the entire expense for the phone in an employee's taxable income. In response to requests from the Treasury Department, Congress has "delisted" cell phones. This places them under the general rules for proving up business expenses. This doesn't mean that cell phones can become a free for all benefit. There are still other issues that have to be addressed by employers. The employers have to carefully consider providing cell phones to employees due to the inherent personal use of the phones. Working Condition Fringe Benefit: Employers can provide the cell phones as "working condition fringe benefits". However, in order to meet this test, the phone has to still be used in a business fashion that would allow the employee to deduct the expense, if the employee paid it personally. Therefore, the phone has to have a significant business purpose. Only the business portion can be excluded from the employee's income. However, now that the phone is not "listed property", it may be easier to determine a reasonable amount that can be considered as business use without the requirement of documenting every single phone call. De Minimis Fringe Benefit: Employers may determine that the amount of personal use of the phone is so small that accounting for it is unreasonable or administratively impracticle. In this case, the employer will make the case that the personal use is a "de minimis fringe benefit" that does not have to be valued for inclusion in the employee's personal income. The result is that employers have to take an honest look at their cell phone policies and determine if the personal use is so small that it can be considered as de minimis or that the personal portion is such that the employer will decide to consider a portion of the phone as personal and either have the employee pay for that portion or include that portion of the cell phone bills as a taxable fringe benefit on the employee's Form W-2. In any case, we no longer have to demand who, when, and why of every call in order to make the decision. Warning: Do not consider this change the liberty to provide employees with cell phones on a tax free basis without any thought or consideration to the business use of the phone. Employers should clearly document why they believe the cell phone is a business related expense and be prepared to support any challenge from the IRS as to the provision of a cell phone as a tax free fringe benefit.

Relief For Small Organizations Facing Revocation

2010-08-05T08:37:00.001-07:00

The Pension Protection Act in 2006 enacted laws that require the IRS to revoke the tax exempt status of any organization that is required to file Form 990, but fails to do so for three consecutive years. (This is only effective for organizations that have a Form 990 filing requirement. It does not effect churches.) The first set of revocations was to be effective on May 17, 2010. However, the IRS became concerned that too many organizations did not fully understand the ramifications of not filing, and it created a leniency program.

If an organization has received a determination letter indicating it has a Form 990 filing requirement, then it must file either Form 990, Form 990-EZ or Form 990-N for each year of its existence. The IRS has granted an extension until October 15, 2010 for organizations to file one of these forms for each of the past three years or at least for 2009 for those eligible to file Form 990-N. This action will avoid revocation of the organization's exempt status.

If an organization does not qualify to file Form 990-N, and it should have filed Forms 990/990-EZ for each of the last three years, the IRS has created a voluntary compliance program. The organization must file returns for all three outstanding years and pay a compliance fee. The maximum compliance fee is $500 and the program relieves an organization from the assessment of penalties for late filing of the returns. This represents a savings of thousands of dollars since the late filing penalty is $20 per day for small organizations and $100 per day for larger organizations.

It is advisable that all organizations determine if they are in compliance with their filing requirements. The IRS has published a listing of organizations with planned revocation on its website. The lists are separated by state. If you have question regarding an organization, the lists may be reviewed to determine if the organization is scheduled for revocation.

With all of the extra effort expended by the IRS, it is anticipated the the revocations will be issued later this year. Additionally, if an organization has a return that has not been filed, it should pursue the voluntary compliance program as a remedy. If only one return is late, it should be filed through this program. After the end of this program, the IRS will probably be fairly unforgiving to late filers.

Form 1099-Misc Reporting Nightmare

2010-08-02T14:13:00.001-07:00

Perhaps you have heard the ugly rumors of the increased mandatory reporting for payments to vendors. Unfortunately, it isn't all rumor, but it is truth. In an effort to make the health care bill "deficit neutral", the legislation included a provision that would require Forms 1099-Misc to be filed for virtually all vendor payments, including those to corporations, that exceed $600 for the year. It seems that this provision alone is anticipated to raise $17 billion of the nearly $1 trillion needed for the health care legislation. While this looked good on paper, no one attempted to consider the logistics or the cost to comply with such legislation. For example, what would be the cost to businesses to comply or better yet, could the IRS handle all of those Forms 1099-Misc. It is estimated that the provision will increase the filings by five fold. The provision is set to become effective in 2012. However, help may be on the horizon. It seems that both Democrats and Republicans are realizing this is not the best idea and something may have to be done. Rep. Dave Camp of Michigan has introduced H.R. 5893 to repeal this provision citing information that the compliance with the provision will cost American businesses more than the amount of revenue generated for the government. The cost is anticipated to be extremely burdensome to small business and small organizations. This translates into money diverted to regulatory compliance that a nonprofit should be able to use to fund its programs. At this point, we are watching Congress to see what will happen. We don't have to begin gearing up for the reporting just at this time, and have some time for Congress to save the day. Stay tuned to the final outcome on this issue and more guidance on when, or if, you will need to send a Form W-9 to Office Depot to gain their address and employer identification number.

Payroll Tax Responsibilities - A Gentle Reminder

2010-04-26T06:19:00.000-07:00

A recent Tax Court memo decision serves as a good reminder that an organization is ultimately responsible for payroll tax deposits and filings even if the duties are delegated to an outside provider. In McNair Eye Center, Inc. v. Commissioner, TC Memo 2010-81, the owner of the eye center was held to be ultimately responsible for the timely deposit of payroll taxes despite the fact he hired an outside CPA to take on those responsibilities. The CPA filed the 2005 Forms 941 in February of 2006 and failed to pay the 2005 payroll taxes. The IRS determined, and the Court agreed, that the ultimate responsibility for the payment of the payroll taxes was the owner of the eye center. Therefore, there was not a reasonable cause to abate the penalties related to the late payment of the payroll taxes and the late filing of Forms 941.

While this case involves a for profit entity, the rules are the same for nonprofit organizations. Organizations should take seriously all responsibilities surrounding payroll. The ultimate responsibility for the payment of the payroll taxes is often attributed to the board of directors of the nonprofit or the officers of the nonprofit. This is true even if the organization has hired someone to handle all of the payroll functions of the organization and even if the organization uses an outside payroll service to process its payroll.

Not only are the related penalties a concern for an organization, but anyone deemed to be a "responsible person" can be held personally liable for unpaid payroll taxes. Therefore, it is in everyone's best interest to institute procedures to confirm the organization's compliance in regards to its payroll tax deposits and its payroll tax filings.

New Resource For Nonprofits

2010-04-22T09:16:00.001-07:00

Thomson Reuters/PPC has just published a brand new guide for nonprofits entitled Nonprofit Tax and Governance Guide: Helping Organizations Comply. Unlike other PPC materials that are published for the professional practitioner, this guide is published specifically for the nonprofit organization, its board members, and its staff. It covers various areas of governance, fundraising, compensation, and contributions. My husband, Frank Sommerville, and I were honored with the opportunity to assist in the writing of this new resource, so we are especially excited about its publication. The guide is full of helpful information as well as examples of policies, procedures, and other practical tools to assist you in operating a nonprofit organization. Any organization interested in more information about the publication can contact PPC at 1-800-431-9025.

HIRE Act of 2010 - The Tax Man Giveth

2010-03-22T18:20:00.000-07:00

On March 18, 2010, President Obama signed into law the Hiring Incentives to Restore Employment Act better known as the HIRE Act of 2010. (Do you wonder how many people it took, or how long it took them, to come up with the name for this legislation that would create the acronym HIRE?) This act relieves employers from paying the social security portion or OASDI portion of the employment taxes on wages paid during 2010 to qualified workers.

CAUTION: There is no relief from the employer portion of Medicare taxes or any of the taxes that are withheld from the employee.

The OASDI portion of the employment tax is the 6.2% of the FICA taxes assessed on wages up to $106,800 during 2010. The maximum OASDI tax an employer must pay on any worker is $6,621.60. In essence, an employer will not have to pay this tax on wages paid between March 19, 2010 and December 31, 2010 to a qualified worker.

A qualified worker is one that is:

Employed after February 3, 2010;
Provides a signed affidavit that he has not been employed for more than 40 hours during the past 60 days;
Isn't employed to replace another employee unless the other employee separated from employment either voluntarily or for cause (i.e., you can't fire the entire staff and then hire new ones simply to benefit from this new law); and
Isn't related to the employer.

The tax relief that is attributable to the first quarter of 2010 will not be refunded, but will be applied to pay other payroll taxes that are due for the second quarter. After that, the employer will simply not have to remit the taxes. (This gives the IRS enough time to draft the new Form 941. There simply isn't time before Form 941 is due for the first quarter of 2010.)

Lack of Required Statement Kills Charitable Contribution

2010-03-17T09:05:00.000-07:00

Friedman, TC Memo 2010-45
In a recent Tax Court decision, a taxpayer forfeited his charitable contribution for several reasons but one of the reasons was due to an insufficient charitable contribution receipt. The receipt issued to the taxpayer failed to contain the statement that there were no goods or services provided to the donor in exchange for the contribution.

Background
In 1995 Congress enacted IRC Section 170(f)(8)requiring a donor to obtain a qualifying charitable contribution receipt to claim a deduction for a contribution of $250 or more. A qualifying receipt must meet the following criteria:

1. The receipt must contain the amount of cash or a description of the property contributed.
2. The receipt must state whether or not the donee organization provided any goods or services in consideration, in whole or in part, for the contribution.
3. The receipt must contain a description and a good faith estimate of the value of any goods or services referred to in (2) or, if such goods or services consist solely of intangible religious benefits, a statement to that effect.
4. The receipt must be addressed to the donor and obtained by the donor by the earlier of the date the donor files his tax return or the due date of the return (including extensions).

Additionally, legislation in 2006 added to the above requirements the need for the receipt to reflect the dates of the donations as well as the individual amounts of the donations.

Implementation
Despite the fact that these changes in the law originated in 1995, an amazing number of charitable organizations still do not issue receipts with the wording required to make the receipt a qualifying receipt. Granted the law is not on the organization, but rather it is on the donor to have a qualifying receipt in order to claim a donation. However, donors believe that the receipts received from charitable and religious organizations will be qualifying receipts. Many discover in the course of an IRS exam that the receipt received from an organization is not qualifying and lose the corresponding deduction. There is nothing at this point that can be done for a donor. The donation is lost and the receipt cannot be corrected. At this point, an organization may lose a valuable relationship.

Despite being the law for 15 years, many organizations, including many religious organizations, are issuing receipts to their donors that are insufficient to claim a donation. Each year as my firm prepares tax returns for individuals, we see receipts that are insufficient to claim a donation and must be reissued prior to the completion of the return. Additionally, I have received calls from distraught church finance and business administrators wanting to know how to provide assistance to the member who has lost the deduction due to an insufficient receipt.

In order to make sure that an organization is not the one in the hot seat dealing with a distraught and angry donor, it should review all the contribution receipts for your organization and make sure the following wording appears on the receipt.

There were no goods or services given in exchange for the above contributions other than intangible religious benefits.

In the event the receipt does include the fair market value of the goods or services received, the the organization may include this statement:

There were no goods or services given in exchange for the above contributions other than intangible religious benefits and those goods or services so indicated on this receipt.

Haiti Earthquake Relief Contributions Deductible in 2009

2010-01-26T06:28:00.000-08:00

On January 22nd, President Obama signed into law H.R. 4462, which allows taxpayers to claim a charitable contribution on their 2009 tax return for cash contributions given through March 1, 2010, dedicated to Haiti earthquake relief. The law does not extend to the donation of noncash items dedicated to relief efforts. The contributions may be deductible either on the 2009 tax return or on the taxpayer's 2010 tax return.

This new law will require charitable organizations to clearly indicate on donor receipts the contributions received for Haiti relief efforts. Additionally, the contributions for Haiti relief efforts will need to be separately stated on any cumulative or year end receipts issued at the close of 2010.

As a reminder, all contributions of $250 or more are required to be documented with a qualifying receipt including the following:

the date the receipt is issued
the name and address of the donor
a listing of the charitable contributions
a statement indicating that no goods or services were given in exchange for the contribuitons

Year End To Do Items

2009-11-17T13:16:00.001-08:00

The holidays are upon us and soon it will be the end of the year. Now is a good time to turn your thought toward a couple of housekeeping items necessary to plan for 2010.

Item 1: It's time to review compensation packages and make sure they are properly designated for 2010. Review the package to make sure all components are properly stated and approved. Housing allowances should be separately stated and clearly approved by the right authority. Even if nothing is changing for 2010, restate the entire package and the housing allowance for good measure.

Item 2: Get ready for charitable contribution reporting. Review the way the software program is preparing receipts and make sure all the required items will be printed on the receipts. The IRS is giving taxpayers a lot of scrutiny in this area. Many agents are looking for receipts to be signed by someone in the organization and to be on organization letterhead. These are not requirements, but the agents are pursuing these issues as if they were requirements. If the receipts are going to be printed on plain paper, consider what can be done to make them look official. Please make sure the receipts contain the required wording, i.e., there were no goods or services given in exchange for the listed donations.

Item 3: Have the governing body approve the budget for 2010. This gives the employees the right to operate the organization during the year.

Item 4: Make sure the organization has a conflict of interest policy, a document retention policy and a whistleblower policy adopted by the end of the year.

Item 5: Get ready for payroll reporting!!!! Review all of the benefits provided to the employees and the payroll items to ensure that everything is properly reported on the Forms W-2. Remember that payroll is more than just what goes on the paycheck. The IRS is gearing up to do 6,000 payroll exams starting in 2010, so it is definitely time to get everything in order.

Item 6: Review all of the vendors and make sure they are properly marked to have the Forms 1099-Misc issued. Don't forget to key payments to LLCs as reportable on the Forms 1099-Misc. The IRS can assess a 25% backup withholding tax to the organization if it fails to issue a 1099-Misc when required.

While there are certainly many other demands on our time during this time of the year, it will be greatly beneficial to divert a little time to the above items prior to December 31st.

IRS Releases Draft of 2009 Form 990

2009-11-17T13:05:00.001-08:00

The IRS has released the draft of the 2009 Form 990. It can be located at http://www.irs.gov/ under their Draft Forms section. A quick review of the form does not reveal any major changes in the form. One notable change is the clarification that is now allowed when the organization is a part of a consolidated certified financial audit. Questions have been added that allow an organization to indicate whether it received an individual certified financial audit or was a part of a consolidated financial audit. I have not had the opportunity to review all of the schedules to determine any changes that may have been made.

In early November, the IRS issued sets of Frequently Asked Questions (FAQ) for Schedules A and L of the Form 990. These are just a part of the FAQs that have been released this year to assist in clarifying various filing issues for 2008 returns. It is hopeful that some of this information will make it into the 2009 instructions.

Payment of Personal Expenses Kills Religious Organization

2009-10-05T07:47:00.001-07:00

In a recent private letter ruling, the IRS issued a final adverse determination letter to an organization due to the extensive nature of personal expenses paid on behalf of its founder. The organization had been formed to spread the Christian Gospel though speaking engagements and conferences. Revenues were generated through contributions, love offerings for speaking engagements and conference registration fees.

During the course of an examination, the IRS noted a consistent pattern of expenditures for clothing, hair cuts, spa services, auto expenses, payments on personal credit cards and other miscellaneous personal living expenses. None of these expenses had been treated in the accounting records as compensation to the founder. However, the outside accountant would often take steps to clean up the activity after it had occurred by filing delinquent payroll tax returns and attempting to report the personal expenses as compensation to the founder.

The IRS found that the regular occurence of this activity over a period of years indicated that the organization was not operated exclusively for exempt purposes but rather for the private benefit of the founder. The exempt status was revoked. Additionally, the founder was required to pay the intermediate sanctions on personal expenses as well as pay the corrections amount required under IRC Section 4958 to another charity.

This ruling illustrates one more time the importance of drawing definite lines between the persons involved in an exempt organization and the organization. It is important that compensation be clearly defined and that there be no comingling of personal funds and organizational funds.

Private Letter Ruling 200928046 7/10/2009

Form 990 Filing Requirements

2009-07-28T18:25:00.000-07:00

Larger organizations required to file an annual information return are well into the preparation process of the new Form 990 for 2008. Many of these are due at November 15th. However, now is the time for smaller organizations to start preparing for conquering the new form for the 2009 tax year. For 2009, all organizations with gross receipts over $500,000 or assets greater than $1,250,000 will have to file the Form 990. Some of these organizations may not be ready to tackle the new form, so following are some helpful tips.

Find a preparer who is preparing several of these forms. This isn't a form that is easy to complete and organizations need competent professionals to help them navigate the form.

Have the board adopt a conflict of interest policy, a document retention policy and a whistleblower policy before the end of 2009.

Review the composition of the board of directors - does the organization need to increase the number of independent directors?

Review the revenue and expense reporting to determine if the necessary information can be easily obtained from the current accounting system.

Consider taking a class on the Form 990. This is good even for the executives that are not the "numbers" people of the organization. A three hour course will be offered as a part of the 2009 Ultimate Financial & Legal Conference hosted by my firm October 26th & 27th. There is still time to register.

Print the form from the IRS website at http://www.irs.gov/ and see all the information that will be required. Don't wait until it is time to file the form to figure out what it's all about!

With the returns for 2010, all organizations with gross receipts greater than $200,00 will be required to file the full Form 990. Organizations with gross receipts of $50,000 to $200,000 will be filing Form 990-EZ. Organizations with gross receipts of less than $50,000 will file the Form 990-N or the epostcard.

Hope For The Lost Form 4361

2009-07-04T08:30:00.000-07:00

Ministers are allowed to opt out of Self Employment tax by filing Form 4361 with the IRS. There is a slim window of time during which a minister can file the form. After being filed in triplicate with the IRS, the IRS returns an approved copy of the form to the minister.

Whenever I work with a minister that has filed Form 4361, I always tell them it is their most valuable asset. An approved Form 4361 is very difficult to replace. Without the approved form it is hard to convince an IRS agent that the minister is exempt from Self Employment tax. The courts have allowed the exemption without an approved form where the minister has retained proof that he filed the form. Apparently, a Form 4361 that is properly completed and timely filed is rarely not approved by the IRS.

Every year I come in contact with ministers who do not have copies of their approved Forms 4361. To make matters worse, they also do not have any evidence of filing the form with the IRS. In the past, I have had little guidance to give to them regarding how to obtain a duplicate of the approved form. However, the IRS recently published a Minister Audit Technique Guide reviewing all the rules regarding ministers for its agents. One of the sections explains to the IRS agent what to do if the minister cannot provide his/her Form 4361.

The IRS gives its agents three avenues for confirming the exemption:

For ministers who filed the Form 4361 after 1988, the agent can order a transcript for the year under audit. Included on this transcript should be an indicator that tells the agent the minister is exempt from Self Employment tax.
If the transcript is not an option, the agent can contact the Taxpayer Relations Branch at the IRS Service Center where the Form 4361 was filed and request a copy of the form.
The last option is to contact the Social Security Administration in Baltimore and ask them to provide confirmation of a minister's exempt status.

I still believe that an approved Form 4361 is a minister's most valuable asset. I recommend a copy of the approved Form 4361 be given to the minister's CPA as well as placed in with all those other valuable papers, i.e. passports, birth certificates, and social security cards. If you are the minister who cannot find your approved Form 4361, you should explore the above avenues to confirm your exemption. It is better to know for sure you are exempt, then to discover you are not exempt when a large tax bill is sent your way.

Mandatory Reporting of Foreign Bank Accounts

2009-06-28T17:23:00.000-07:00

For tax exempt organizations, one of the little known IRS reporting requirements centers around foreign bank and investment accounts held by U.S. individuals or entities. The U.S. Treasury requires Form TD F 90-22.1 be filed to report holdings in foreign accounts by June 30th of each year. The reporting is required in the event that an individual or entity has accounts containing $10,000 or more in the aggregate. Penalties for not filing are staggering and can easily exceed the value of the accounts.

I find that many tax exempt organizations do not realize that they are subject to this filing. As the world shrinks, many organizations conduct operations in foreign countries. It is not unusual for an organization or a church to maintain foreign investment or bank accounts due to missions activities. Most organizations are not familiar with these filing requirements. Many times the professionals working with the organizations may not even realize that there are accounts in other countries.

If this blog is setting off alarms in your head, and you think your church or organization may have a reporting obligation in this area, then it is time to find out more information. For those who have not complied with this filing, the IRS does have a voluntary compliance program to help bring people and organizations into compliance without penalties.

If this update applies to you or your organization, more information on the subject may be located through the IRS website at www.irs.gov.

Entering the World of the Blog

2009-06-17T16:40:00.000-07:00

Since I am not always the quickest to embrace technology, much to the dismay of my staff and my husband, I have been slow to enter the world of blogs. However, there is a constant stream of information flowing across my desk that I wish I could share with exempt organizations of all types and especially with all of my wonderful clients. To that end, I have decided the best way to share interesting information is to blog the information. So here goes my entrance into the world of the blog, I hope that a few organizations find it and find the information helpful.

Minister Sentenced to 21 Months For Tax Evasion

2009-06-17T16:28:00.000-07:00

Recently a minister was sentenced to 21 months in jail for failing to report all of the income received from his church. In reporting his taxable income, the church failed to include payments made on the minister's personal credit cards, payments for life insurance premiums, values for automobiles as well as other personal expenses that were paid by the church. U.S. v. Clark, 103 AFTR 2d 2009-1349, 3/20/2009.

This case indicates the importance in identifying and properly reporting all aspects of a minister's compensation. While many of you may find the above items unusual, it is not unusual for a tax exempt organization to end up paying for personal expenses of its top executives. However, in most cases, the only amounts reported for payroll purposes are just what is run through the payroll system. This type of activity is one of the reasons the new Form 990 requires extensive reporting on compensation paid to an organization's officers, directors and key employees. Additionally, the IRS has in the past, and stated it will in the future, conducted examinations of the compensation section of specifically selected Forms 990.

Tax Tip: A nonprofit organization should review all of the payments made to or on behalf of staff members and determine which payments are taxable and which are not. Then properly treat the taxable benefits according to all the rules regarding payroll reporting and taxation.