Countering an unfair tax advantage

The commerciality doctrine was created along with the operational test to address concerns over nonprofits competing at an unfair tax advantage with for-profit businesses. In general, the operational test requires that a nonprofit be both organized and operating exclusively to accomplish its exempt purpose. The test also requires that no more than an “insubstantial part” of an organization’s activities further a nonexempt purpose. This means that your organization can operate a business as a substantial part of its activities as long as the business furthers your exempt purpose.

Here’s the catch: Under the commerciality doctrine, courts have ruled that the otherwise exempt activities of some organizations are substantially the same as those of commercial entities. Courts and the IRS consider several factors when evaluating commerciality. No single factor is decisive, but asking the following questions about your nonprofit and its business activities can help you evaluate risk:

• Have you set prices to maximize profits?
• To what degree do you provide below-cost services?
• Do you accumulate unreasonable reserves?
• Do you use commercial promotional methods such as advertising?
• Is the business staffed by volunteers or paid employees?
• Do you sell to the general public?

Also consider the extent to which your organization relies on charitable donations. They should be a significant percentage of total support.

Avoiding UBIT

There’s another risk for nonprofits operating a business. You could pass muster under the commerciality doctrine but end up liable for unrelated business income tax (UBIT).

Revenue that a nonprofit generates from a regularly conducted trade or business that isn’t substantially related to furthering the organization’s tax-exempt purpose may be subject to UBIT. Much depends on how significant the business activities are to your organization as a whole. There are also several exceptions, so be sure to check with us.

Reducing risk

If you’re thinking about launching a new business venture to raise revenue, talk to us first. We can review your proposed idea and help you reduce the risk that the commerciality doctrine or UBIT will trip it up.

© 2021

Current financial pressures mean that your not-for-profit probably can’t afford to pass up offers of support. Yet you need to be careful about blindly accepting grants. Smaller nonprofits that don’t have formal grant evaluation processes are at risk of accepting grants with unmanageable burdens and costs. But large organizations also need to be careful because they have significantly more grant opportunities — including for grants that are outside their current expertise and experience.

Here’s how accepting the wrong grant may backfire in costly and time-consuming ways.

Administrative burdens

Some grants could result in excessive administrative burdens. For example, you could be caught off guard by the reporting requirements that come with a grant as small as $5,000. You might not have staff with the requisite reporting experience, or you may lack the processes and controls to collect the necessary data. Often government funds passed through to your nonprofit still carry the requirements that are associated with the original funding, which can be quite extensive.

Grants that go outside your organization’s original mission can pose problems, too. Managing the grant may involve a steep learning curve. You could even face an IRS challenge to your exempt status.

Cost inefficiencies

Another risk is cost inefficiencies. A grant can create unforeseen expenses that undermine its face value. For example, new grants from either federal or foundation sources may have explicit administrative requirements your organization must satisfy.

Additionally, your nonprofit might run up expenses to complete the program that aren’t allowable or reimbursable under the grant. Before saying “yes” to a grant, net all these costs against the original grant amount to determine its true benefit.

Lost opportunities 

For any unreimbursed costs associated with new grants, consider other ways your organization might spend that money (and staff resources). Could you get more mission-related bang for your buck if you spend it on existing programs?

Quantifying the benefit of a new grant or program can be equally or more challenging than identifying its costs. Evaluate every program to quantify its impact on your mission. This will allow you to answer the critical question when evaluating a potential grant: Are there existing programs that can be expanded using the same funds to yield a greater benefit to your mission?

Do your homework

Grants from the government or a foundation can help your nonprofit expand its reach and improve its effectiveness in both the short and long term. But they also can hamstring your organizations in unexpected ways. Contact us for help or more information.

© 2020

Many people are currently working from home to help prevent the spread of the novel coronavirus (COVID-19). Your external auditors are no exception. Fortunately, in recent years, most audit firms have been investing in technology and training to facilitate remote audit procedures. These efforts have helped lower audit costs, enhance flexibility and minimize disruptions to business operations. But auditors haven’t faced a situation where everything might have to be done remotely — until now.

Re-engineering the audit process

Traditionally, audit fieldwork has involved a team of auditors camping out for weeks (or even months) in a conference room at the headquarters of the company being audited. Thanks to technological advances — including cloud storage, smart devices, teleconferencing, drones with cameras and secure data-sharing platforms — audit firms have been gradually expanding their use of remote audit procedures.

But remote auditing still isn’t ideal for everything. The American Institute of Certified Public Accountants (AICPA) has identified the following aspects of audit work that may present challenges when done remotely:

Internal controls testing. Auditing standards require an understanding of how employees process transactions plus testing to determine whether controls are adequately designed and effective. If employees now work from home, your company’s control environment and risks may have changed from prior periods.

Inventory observations. Auditors usually visit the company’s facilities to observe physical inventory counting procedures and compare independent test counts to the company’s accounting records. Stay-at-home policies during the pandemic (whether government-imposed or company-imposed) may prevent both external auditors and company personnel from conducting physical counts.

Management inquiries. Auditors are trained to observe body language and judge the dynamics between co-workers as they interview company personnel to assess fraud risks.

Lending a hand

Moving to a remote audit format requires flexibility, including a willingness to embrace the technology needed to exchange, review and analyze relevant documents. You can facilitate this transition by:

Being responsive to electronic requests. Answer all remote requests from your auditors in a timely manner. If a key employee will be out of the office for an extended period, give the audit team the contact information for the key person’s backup.

Giving employees access to the requisite software. Before remote auditors start “fieldwork,” ask for a list of software and platforms that will be used to interact and share documents with in-house personnel. Provide the appropriate employees with access and authorization to share audit-related data from your company’s systems. Work with IT specialists to address any security concerns they may have about sharing data with the remote auditors.

Tracking audit progress. Ask the engagement partner to explain how the firm will track the performance of its remote auditors and communicate the team’s progress to in-house accounting personnel.

Ready or not 

Remote working arrangements have suddenly become the “new normal” in these trying times. Contact us to discuss ways to manage remote auditing challenges and continue to report your company’s financial results in a timely, transparent manner.

© 2020

Accounting for contributions and grants has often proven complicated for not-for-profits, especially when they come with donor-imposed conditions. But 2018 guidance from the Financial Accounting Standards Board (FASB) provided some much-needed clarification of earlier instructions.

Provider factor

Traditionally, nonprofits have taken varying approaches to characterizing grants and similar contracts as exchange transactions (also known as reciprocal transactions) or contributions (nonreciprocal transactions). The new guidance makes the process relatively simple. To determine how to treat a grant or similar contract, assess whether the “provider” receives commensurate value for the assets it’s transferring. If so, treat the grant or contract as an exchange transaction.

If the provider doesn’t receive commensurate value, determine whether the asset transfer is a payment from a third-party payer for an existing transaction between you and an identified customer (for example, payments made under Medicare). If it is, the transaction isn’t a contribution, and other accounting guidance would apply. If it isn’t, the transaction is accounted for as a contribution.

Conditional questions

Distinguishing between conditional and unconditional contributions has been the other main challenge for nonprofits. But the new rules stipulate that a conditional contribution includes:

1. A barrier the nonprofit must overcome to receive the contribution, and
2. Either a right of return of assets transferred or a right of release of the promisor’s obligation to transfer assets.

Unconditional contributions are recognized when received. However, conditional contributions aren’t recognized until you overcome the barriers to entitlement. To determine whether you must overcome a barrier to receive a contribution, consider:

• The inclusion of a measurable performance-related or other measurable barrier (for instance, a matching requirement),
• Limits on your nonprofit’s discretion over how to conduct an activity (such as specific requirements on allowable expenses), and
• A stipulation that relates to the purpose of the agreement (not including administrative tasks and trivial stipulations such as production of an annual report).

The new rules also provide a simultaneous release option, which allows you to classify unconditional donor-restricted contributions directly in “net assets without donor restrictions” if the restriction is satisfied in the same period that the revenue is recognized.

Already in effect

The FASB’s Accounting Standards Update No. 2018-08 already affects most nonprofits. It takes effect for most organizations that are recipients of funds for annual reporting periods starting after December 15, 2018, and interim periods within annual periods beginning after December 15, 2019. The rules generally take effect one year later for organizations that are resource providers.

Note that, as a result of this guidance, you may find yourself accounting for more grants and similar contracts as contributions than you have in the past. If you aren’t sure what this means for your financial statements, loan covenants and other matters, contact us.

© 2019

To properly fulfill their fiduciary duties, your not-for-profit’s board needs certain information. And it’s up to the executive director and managers to ensure they have it. This doesn’t mean you have to share every internal email, memo or phone message. Board members are busy and you don’t want to bog them down with superfluous reading material. However, there are several types of information you must share so that they can make informed decisions.

Financial data and filings

The first is financial information. To fully understand your nonprofit’s position, the board must receive copies of your Form 990. The board president or treasurer should review this document and approve it before it’s filed.

The board also must get the results of any audit you’ve conducted, salary information for key staff and monthly and quarterly financial reports showing income and expenses. If your organization provides directors and officers insurance, provide proof to board members.

Strategic reports

Strategic information includes reports on your nonprofit’s work, such as how programs are being carried out and how they’re used, progress on event timelines, and membership statistics. If your organization collects information from the audience it serves through formal or informal means, provide at least an executive summary of your findings to your board.

Occasionally sharing with the board articles that relate to your nonprofit’s mission, locations or audiences also may be useful.

Board member info

To help foster teamwork and commitment to the cause, ask that members share brief bios and other relevant background information. Also publicly share thank-yous when board members make special efforts — whether those efforts are individual (such as securing an event sponsor) or group (performing due diligence on a new executive director).

How do you know whether a piece of information should be shared with your board? Ultimately, if it’s something that will help them serve your nonprofit, it’s something you should share.

© 2019

If your not-for-profit owns its own facility, it likely will have more control of work space than if you lease. However, ownership carries risks — and leasing can provide several advantages. If you’re trying to make a buy-or-lease decision, be sure to weigh the following factors.

Equity in owning

Buying a facility allows your nonprofit to build equity, and it can stabilize your cash flow and presence in the community. Owning can also be important if you want to accommodate special needs and configure and equip your space to certain specifications. For example, a physical therapy center might need to buy a facility because it plans to construct a swimming pool and locker rooms.

But when buying, it’s easy to bite off more than you can chew. Some organizations fail to project negative scenarios such as a funding drop or local government assessments. And there’s the risk of plummeting resale values. If you bought, what would happen if the neighborhood surrounding your building changed or if it were no longer near your client base?

Flexibility in leasing

Leasing office space or a facility can offer more flexibility than ownership. Say you’re uncertain about your client base and your organization could experience substantial growth or decline. It’s far easier to move when your lease expires than to sell real estate.

Perhaps you can secure an attractive long-term lease, one that guarantees only modest rent increases, and allows (and sometimes finances) reconfiguring the space to meet your needs. Another lease plus: Most repair headaches — and expenses — will be your landlord’s.

On the other hand, monthly rent can take a big bite from your budget with little return, and the cost can increase dramatically when it’s time to renew your lease. Fire insurance and real estate taxes also can be the renter’s responsibility if you have what’s called “a triple net lease.”

Comparing costs

Sometimes it’s difficult to decide whether to lease or buy the space you need for operations. In such cases, cost analysis can help you make an informed decision.

On the buying side, consider the property’s:

• Purchase price and financing terms, such as interest rates and closing costs of the new facility,
• Expected useful life for your operation, and
• Estimated value when you expect to sell it.

On the leasing side, gather information on the projected lease term, rate and renewal options available. Also estimate how much interest could accrue on the capital you would spend on a down payment, if you invested that money. Contact us for help crunching the numbers.

© 2019