Year End To Do Items

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

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

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

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

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:

1. 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.
2. 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.
3. 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

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

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

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.